Legal History and Historiography in Colonial Sub-Saharan Africa
Summary and Keywords
Increasingly, the study of law in colonial Africa has moved out of the domain of legal scholarship per se, where it had its origins in the 1940s, and into that of social and cultural history; it has also shifted from a rules-based approach, primarily concerned with legal codes and judicial institutions, to one that focuses on process and explores the complex relationship between law and culture. As the field has expanded, it has divided into sub-branches. Some remain within the scope of legal history, defined as the study of how legal codes and judicial procedures have developed and changed and of the issues of principle that arose; others are more concerned with the social impact of law, how the establishment of colonial legal regimes, including customary law and the courts where cases could be heard, presented new dilemmas and opportunities and altered the distribution of power in African communities. Beyond this, historians have also used legal records, especially court records, as social documents without being directly concerned with their particular legal and judicial contexts. Once their limitations and the difficulties of interpretation that they present have been understood, such records offer potentially rich insights into family and household affairs as well as into more obviously civil or criminal matters.
Law and Colonialism
Law was always at the center of the imperial enterprise. It served as both a justification for and an instrument of colonial rule, legitimizing its power and structuring its exercise; it also claimed to tame the excesses of arbitrary power and make the state accountable for its actions.1 Law made and protected the colonial state and the state made and enforced the law. Its impact on colonized communities was profound and far-reaching. As the reach of the state gradually expanded outward, its imposition of alien legal codes and practices challenged and often undermined assumptions about status and hierarchy, gender, and age relations, and about how individuals, households, and communities should conduct their affairs and settle their differences.2
Yet, for all its apparent solidity and stability, its rituals and routines and its measured and apparently impersonal application of force, the rule of law in Africa was uncertainly and sometimes inconsistently enforced, subject to challenge from within and without, and enmeshed in conflicts and contradictions of its own making. Law faced in two directions. It could be simultaneously stabilizing and transformative. Colonial objectives were caught between the two. The rule of law was a frame for social control, maintaining authority and preserving what was assumed to be traditional social harmony; and punishing rebellious acts that threatened order.3 It was also a means of promoting development, rewarding compliance, enabling social progress, and ensuring that change ran smoothly along the right tracks. However, the imposition of legal regimes had unintended and unforeseen consequences.4 It tended to dam local currents of change and altered the distribution of power. While laws might constrain behavior, they could not “reform” it, as 19th-century metropolitan social reformers had hoped; still less could they change belief. As Karen Fields has shown, administrators committed to upholding “custom” and “traditional authority,” but without a clear understanding of their moral and cultural contexts, found themselves trapped in a thicket of conflicting claims to authority through which they then had to hack a path to legal clarity.5 Colonial states could not transcend coercion, even if they wished to do so. How much “transformation” was possible before “stability” was threatened? This was a central dilemma of colonial rule, and states steered an erratic course between tumult and inertia, trying to use the application of law as a corrective.6 It was messy not masterful, and that makes it an absorbing study.
The “creation” of law, like the “invention of tradition” or the construction of “tribe,” was always a joint enterprise in which African agents played a leading and often determining role as interpreters of both law and language.7 “Customary law” was administered under colonial authority, but often to African ends, or, at least, to the ends of some Africans. In civil law, colonial administrators acted, as Richard Roberts put it, as “umpires” in domestic disputes, though their presence and interests might change the rules of the game.8 Even criminal law could be reinterpreted or reconfigured to reflect African understandings of what was right. In court, Africans were not always silent and apparently overawed by the majesty of the law. However unfamiliar the place and the process might be, they had things to say, points to make, agency to claim. They learned how to use the law, to speak its language, and to take advantage of the spaces it opened up and the opportunities it afforded to make and contest claims and to voice grievances and demand reckoning. In a famous passage, E. P. Thompson argued that the law in 18th-century England was not simply an instrument of class oppression. To be effective as a means of control, it had to have a degree of assent and legitimacy, and this placed constraints on coercion and the refusal of “justice.”9 The limitations of coercion, the manufacture of consent, and questions surrounding the nature and delivery of justice in unequal and divided societies are also central to the study of law in colonial Africa.
The Structure of Law in Colonial Africa
Colonial powers brought their own legal traditions to Africa. These had deep historical roots but had been modernized and reformed during the 19th century as the reach and functions of metropolitan states expanded. There were two main traditions. One was the European civil law tradition, founded ultimately on Roman law, which shaped the development of legal regimes in Franco- and Lusophone Africa. It relied on legal codes promulgated through national assemblies. In court, magistrates examined cases presented to them and ensured that the relevant articles in the code were correctly applied. They did not make law themselves: that was the prerogative of the legislature. The other tradition was that of the English common law. Here judges presided over cases presented in an “adversarial” fashion by opposing lawyers. In their decisions, judges drew on precedent—what previous judgements in like cases had laid down—but they also had the authority to reinterpret precedent and even, though rarely, to overturn it, thus setting new precedents and, in effect, making law. Precedent could, however, be overridden by parliamentary legislation, which then created a new baseline in a specific area of the law. Very broadly speaking, the common law tradition allowed for continuous if very gradual judicial change while the civil law tradition remained fixed in the courts but subject to change by national decree.10 In between these traditions was South Africa where the original 17th-century Roman-Dutch law was overlaid, but not extinguished, by English common law in the 19th century. Parts of the territory thus had a much longer exposure to Western legal concepts, from before the era of metropolitan codifications and reforms, and the combination of greater historical depth and the partial fusion of traditions made the South African legal system distinctive.11
The dominant metropolitan traditions in colonial Africa were not the only, or even the most important features of the judicial landscape as far as ordinary Africans were concerned. In colonies with substantial Muslim communities—Northern Nigeria or Senegal, for example—governments formally recognized sharia law and the courts that administered it, especially in civil matters of family law and inheritance. Sharia law and local “custom” coexisted and influenced each other, but like colonial codes, the former was based on a corpus of written texts interpreted and applied by jurists.12 Far more important was the domain of “customary law” within which almost all Africans lived. It was neither feasible nor desirable to impose Western legal regimes on African communities, but neither could African communities remain outside the realm of law. “Protection” included the right to customary justice; and subcontracting the administration of justice at the lower level saved resources and shifted the burden—and the blame—onto African shoulders. Whether or not formally encoded, “customary law” was ostensibly based on “native custom” or tradition, insofar as it was possible to determine what “custom” was in any given case. Because it was unwritten and embedded in social transaction, it resisted abstraction and codification. To be useful to colonial governance, custom had, therefore, to be, in effect, constructed and made legible; and it had to be applied by chiefs or “Native Authorities,” themselves sometimes a colonial construction, who acted as the local agents of colonial rule. Custom, courts, and chiefship hung together.13
Racial and cultural difference and the inequalities of power in colonial states raised important questions of jurisdiction: what categories of people would come under what codes of law? France and other European powers had dealt pragmatically with this by drawing a line between citizen and subject and providing separately for each. Fitting Africans into the English common law tradition, however, presented more difficulties, as reformers in India had already discovered.14 To some extent, “native law and custom” could be drawn on for precedent, but custom reflected local realities rather than universal principles, and might embody the will of the ruler rather than the abstract rule of law. Moreover, some customs appeared “repugnant to justice or morality” as understood in the metropole. “Justice and morality” points to a fundamental problem of difference, for African subjects inhabited a moral world where “justice” was achieved by determining wrongs and restoring social relations through negotiation and compensation, not by exacting external retribution for defined “crimes.” In this world, the colonial state and its prerogatives, including the monopoly of violence, had no place.15 Distinctions between “civil” and “criminal” were difficult to maintain and were often seen by Africans as arbitrary or meaningless; justice might seem quite unjust.16 The result was a working compromise, complex, disputed, and never fully realized. “Customary law” remained a work-in-progress until, and beyond, the end of colonialism. Native courts or tribunals dealt with civil disputes and minor infractions of colonial regulations; more serious criminal cases were reserved for the colonial courts. Over time, the jurisdiction of tribunals was expanded as their procedures became more formalized, but there was resistance to the written codification of customary law because this might tend to “fix” a process that should be flexible and responsive to social change. The contradiction embodied in this concern itself marks a difference between common and civil law traditions.17
This brief overview tends to overstate difference between colonial traditions and understate internal variation. One fundamental similarity was that legal systems in colonial Africa were “dual” or plural, though this did not mean that their component parts had equal standing. Lord Hailey, writing toward the end of colonialism, recommended that the two elements, Western and African, should be reconciled into a single comprehensive body of law, but within a largely Western framework.18 This plurality, together with the realities of administering law on the ground, meant that different metropolitan traditions tended to diverge from their original ideals and converge in Africa. French Republican ideas of assimilation through citizenship did not transcend racial barriers and cultural difference. The distinction between subject and citizen was an important one: the latter were accorded rights not available to the former, and, with some exceptions, it marked a racial divide.19 English law may have been a “hardy plant in an alien soil,” but it was a hybrid nonetheless.20 Some important principles of Common Law did not transfer to all colonies, including the right of trial by jury.21 Even though English legal codes differed from their French and Portuguese counterparts by being applicable without regard to race, this did not mean that racial distinction was not maintained in practice.22
Convergence also arose because European empires in Africa addressed similar problems, if in different ways. One problem was how to establish centralized control over the business of conquest and administration; another was how to govern with meager resources and little knowledge. What was needed was what Sara Berry has aptly termed “hegemony on a shoestring.”23 Legal codes, “customary law,” and a dual court system aimed to achieve both. From the late 1880s, as the pace and scope of colonial expansion in French West Africa was increasing, a code of administrative law, the indigenat, was introduced in newly occupied areas. It provided for the punishment of infractions of colonial regulations but allowed individual administrators, most of whom were military men, great latitude in its enforcement. In 1895, the office of Governor-General was established to give some overall direction to policy and to deal with the tangle of overlapping jurisdictions that had grown up. In 1903, a new code was instituted that effectively created two parallel systems of justice: one for citizens and one for subjects. The original indigenat was sharply curtailed but not abolished until 1946. Belgian rule, established by charter in 1908, operated similarly but without formal recognition of customary law. Portuguese practice after 1899 distinguished between citizen and subject but provided for neither customary law nor African courts and gave local administrators wide discretion.24
Anglophone Africa faced similar limitations of resource and reach, but its legal systems were further complicated by internal differences. First was the constitutional distinction between Protectorate and Colony. The former status was based on agreement between the colonial power and local rulers and provided for “Indirect Rule,” including the administration of justice by African courts following “customary law” but with administrative oversight and appeal. Colonies were ruled “directly,” but African courts and customary law were not thereby excluded. Kenya, for example, did not fully develop its version of customary law and Native Tribunals until after its status had shifted from Protectorate to Colony. Moreover, the practice of Indirect Rule varied greatly. In the three High Commission Territories in Southern Africa, for example, local rulers had wide jurisdiction and considerable local authority; in Nyasaland, however, where Indirect Rule and thus the formal recognition of native courts was not implemented until the early 1930s, “native authority” was more limited and the jurisdiction of colonial district courts correspondingly wider.25 Finally, there was the question of timing: when and how Western law was received. The original British possessions in West Africa—The Gambia, Freetown, the Gold Coast and Lagos—were acquired before the New Imperialism of the late 19th century, and their African populations were already familiar with English law and judicial institutions, to which they had access, especially in commercial matters concerning contract and property in the era of “legitimate trade.”26 A “dual system” was effectively already in place, partly staffed by African legal professionals.27 Judicial and legal practice here was much closer to contemporary metropolitan practice than it was in the territories taken over at the end of the century.28
Africans in British territories were also subject to the English common law as interpreted by colonial judiciaries, embodied in legal codes and modified by local ordinance. The extent to which English law could and should be applied in the colonies was a matter of controversy because it bore directly on the vexed question of what constituted justice for Africans and how it might best be rendered. In newer colonies, legal and judicial structures often had to be built from scratch and relied on written codes, a usage that spread gradually throughout British territories north of the Zambesi.29 In drawing up these codes, law officers could look to earlier examples from elsewhere in the empire, notably India, or to existing codes in other African colonies.30 Experience in Algeria, where officials had been dealing with and incorporating Islamic law and courts since the mid-19th century, had a similar influence on French West Africa.31 Legal codes offered several advantages. They made it possible for laymen, experienced but not legally trained, to administer the law and conduct proceedings, subject to oversight by the Judicial Department.32 Few if any colonies had the resources to staff the number of courts required with trained lawyers. District courts were usually presided over by lay magistrates who were also colonial administrators.33 They heard local criminal cases and sat without lawyers. Prosecutions were undertaken either by the magistrate himself or by a senior police officer. Their judgements could be varied or quashed on matters of legal procedure. Lay courts formed a jurisdictional hierarchy, determined by the level of punishment magistrates could impose. Appeal was upward to the Supreme Court and then to regional Courts of Appeal; revision of cases was downward.34 The basic provisions of a colony’s legal code were supplemented by ordinances, drafted in the Attorney-General’s Office to meet particular needs and passed into law by the Legislative Council. These in turn enabled Rules and Proclamations, issued under the governor’s authority, which defined or varied the scope of the ordinance. Ordinances became law when assented to by the governor, but they were subject to approval by the Colonial Office in London. The power of “disallowance” (the technical term) was rarely invoked, but its threat acted as a lever to ensure that the Colonial Office was consulted prior to the passage of any potentially problematic bill and that colonial legislation conformed to wider imperial principles.
The “search for justice” was a constant preoccupation of colonial governments.35 It was generally acknowledged that, if colonial rule was to gain a measure of acceptance or at least acquiescence, it must dispense justice accessibly, expeditiously, and “without undue regard to legal technicalities.” What this meant in practice, however, was contested. There were two main opposed and deeply entrenched points of view. One, generally held by colonial administrators, was that “knowing the native” was more important than “knowing the niceties (of legal procedure).” District officers on the spot were better equipped to render right judgement than distant judges. Africans, they claimed, neither knew nor cared about common law, but they did know when justice was done—or not done. They were better served by “rough and ready methods, based on common sense, logic and tribal custom.”36 By extension, this also applied to native tribunals. District officials were also aware that magisterial and administrative authority could not be clearly distinguished. Prestige as well as effectiveness suffered if judgements were overturned on technical grounds and known criminals went free.37 Some critics went further and argued that the forms of English law were simply inappropriate to African circumstances and should be modified or replaced.38 Their opponents, however, most of whom were qualified lawyers and members of the bench, dismissed “rough and ready” justice as mere injustice and asserted that colonial subjects should be judged under the same legal regime as their metropolitan fellows: dilution led to oppression and an inferior status at law.39 Although they did not address the system of Indirect Rule itself directly, the implications of their position were clear. Legal opinion in the Colonial Office advised bringing colonial legal codes and judicial procedures into closer alignment with metropolitan practice but deferred to local knowledge. Matters came to a head in 1934 with the Bushe Commission in East Africa, which gave both sides the opportunity to state their views. Its report and recommendations supported the judiciary. Senior colonial officials, however, challenged the key recommendations vigorously and in detail. Some changes were made, but both lay magistrates and native courts remained and the underlying conflict over the nature and provision of justice continued into the late colonial period—and, arguably, beyond.40
The study of law in colonial Africa began as part of a wider liberal interest in the “problem” of governance and development in Western empires. Appropriate systems of law and justice would help to develop and modernize African societies. The focus was almost entirely on the analysis of official data and the comparative study of judicial institutions. These studies are now probably of more interest to historians for what they reveal of the thinking behind them than for their analysis of law and the courts at the time.41
From the 1940s onward, however, legal issues were attracting a wider range of interest, notably from legal scholars and anthropologists, who shared a common view that the focus was shifting from governance to modernity and even toward devolution. Legal systems must recognize social and political change and accommodate “modern Africans.” It was important to see how law was changing on the ground and how it might be further adapted. Legal scholars focused their attention on the law itself, especially on how “customary” and common law might be reconciled and how legal systems might adapt to coming independence.42 Anthropologists (and sociologists) were more concerned with how law was perceived and used on the ground and in the courts.43 Two strands of what later became the field of legal anthropology are relevant here. One was the study of African courts and jurisprudence, particularly in areas where “traditional” courts had greater authority, like Botswana and BuLozi (“Barotseland” in Zambia).44 The first studies were still framed in functionalist terms and tended to present an idealized and rather static rules-based analysis that reflected official concerns at the time. Later studies, however, were more attuned to the detail of how actual cases were argued and decided in court.45 Studying law “in motion” on the ground connected them to another strand: dispute settlement. Here again, some studies were largely concerned with aspects of “social control in traditional societies,” but others cast the field of enquiry more broadly to include court proceedings in urban settings.46 During the 1980s, however, with the effective demise of functionalist analysis, anthropology found itself searching for a new paradigm. Some doubted whether legal anthropology, as a separate subfield, had a future at all; others, like Sally Falk Moore, argued for broadening the field of study to include a much fuller social and historical contextualization, an exploration of the reciprocal relationship between law and culture, for “law pervades culture and culture informs law,” and an explicit acknowledgement of power dynamics in law and the courts.47 Law, especially at the local level, was neither neutral nor “blind” and, since its judgements and proceedings were enmeshed in social relations, “equality before the law” was neither possible nor, it seemed, necessarily desired. Rules and precedents still played an important part in legal argument, but, as Lawrence Rosen and others have suggested, they were validated by local ideas of what was reasonable and right.48 This shift from “rules” to “social processes” brought anthropologists and historians closer at an important moment. The development of the field between the end of formal colonial rule and the late 1980s can be gauged by comparing between two critical pieces: one by Laura Nader in 1965, an anthropologist, the other by Sally Engle Merry in 1991, a legal scholar.49
At the same time, African historians were becoming more deeply engaged with colonial legal history. Two exploratory collections were highly influential in sparking interest and in showing that studying law and the courts had a much wider application to the history of the colonial period.50 As Martin Chanock observed: “law . . . is too important to be left to lawyers.”51 Both collections called for, and demonstrated, a more fully contextualized approach to legal cases, which looked closely at the many extralegal factors that influenced both the recourse to law and the judgements that ensued and moved from static rules to fluid processes. Together these works laid the foundation for much of the expanding corpus of colonial legal history in Africa. The contributors to the Jean Hay and Marcia Wright collection focused on gender, specifically noting the relative absence of women and their experiences from both the official and the scholarly literature. Using this absence as a window, they raised wider issues of inequality under the law, broadly deriving from the function of law as a mechanism of social control. They looked at how “custom” was constructed and disputed, and by whom; and they showed that colonial courts could both reinforce gendered hierarchy and, sometimes, challenge it. In their lengthy introduction, Kristin Mann and Richard Roberts set out the field of study as it was and charted an agenda for future research.52 In retrospect, it is striking to see how much of that agenda has been, if not realized, at least fruitfully pursued by historians since then. Yet, as the editors acknowledged, they were able to draw on a rich existing body of literature, not all of which fell within the “legal” field. The introduction thus looks back as well as forward and is valuable on both counts.
Before turning to the development of the main lines of inquiry first set out in the 1980s and suggesting possible new areas, it will be helpful to review the deeper historiographical implications of the paradigm shift already discussed. The emphasis on fluidity and contingency in the study of law and its implementation, the inclusion of a larger number of actors and “interests” (either individual or group) in the field, the focus on strategies and discourses in and out of court and the link between legal institutions and the unequal distribution of power, extending well beyond a simple and monolithic “colonial oppression,” made it possible to see that the legal and judicial terrain was much rougher and more varied than at first it appeared.
Law and Social History
Recognition of the legal dimension is now so common in work on colonial social history that a full survey would be well beyond the scope of this article. We will therefore concentrate on two areas of interest. One examines how the intrusion of colonial law into the domain of both familial and communal social relationships brought what Mann and Roberts called “changes in the terms of conflict.”53 These changes affected both the household sphere—domestic hierarchy, marriage, property, and inheritance—and the public sphere where gendered and generational relations could be debated, contested, and enforced and where honor, reputation, and consequence could be defended or displayed.54 This is the stuff of social history and legal records can be vivid and revealing. The other is more obviously “legal” and focuses on crime and criminality, their creation and consequences.
The establishment of courts to hear cases under colonial law opened new spaces for argument and new grounds for dispute. Two important studies dealing with customary courts and “family” issues give a sense of what can be done with the records these cases generated. Richard Roberts asked why plaintiffs in Mali took their domestic disputes over marriage and divorce, inheritance, and property to the newly established French courts and what these disputes could tell historians about family life in the French Soudan. Brett Shadle has looked at disputes over bride wealth, abduction, and marriage in native courts in Western Kenya at a time of rapid change when the cost of marriage was rising beyond the means of young men to pay and patriarchal control was being challenged.55 Although these two studies—and others like them—are widely separated in time and place, they both make it very clear that colonial legal history is about much more than law. Studies within this field are as fine grained as the records allow, and they have in common an eye for the strategies pursued by litigants, including what Roberts terms “venue shopping,” making informed decision about where to take cases, and framing petitions or crafting arguments to push the right official buttons or bring the case within a particular ordinance or jurisdiction, and an awareness of the wider sociocultural context that gave arguments meaning and force.
Legal cases offer a lens through which to view “trouble spots” in African society.56 Marriage was clearly one of these. “No cultural question aroused greater passion” in turn-of-the century colonial Lagos.57 Even in less wealthy and acculturated areas, like Gusii, where questions of public status and advancement did not loom so large, marriage was still the place where different concerns fused or collided, for marriage was central to household and more widely social reproduction. In both cases, questions of authority and control were at stake: fathers’ control over daughters, husbands’ control over wives, the authority of seniors over juniors. The advent of colonial judicial institutions made it possible to dispute more openly and sometimes more equally; the promulgation of colonial laws raised the stakes and changed the rules of the game. Officials were aware that the regulation of gender and generation was a potential minefield that they entered reluctantly, but they were under pressure from several directions and were caught between the desire to promote what they saw as social progress, by listening, for example, to women’s complaints of coercion and domestic abuse, and the need to shore up what appeared to be the sagging foundations of social order by supporting male elders’ authority. Maintaining patriarchal authority in towns and where husbands were absent working but still involved in household matters revealed the dilemma very sharply. Often, as women plaintiffs discovered, stability trumped progress and “custom” prevailed over law even in urban courts. The advent of colonial law may have caused more problems for women than it solved.58 Using law as a social lever had unforeseen and contradictory consequences. Senior men in Lagos reacted bitterly to the Marriage Ordinance because it fixed the age (twenty-one) at which children were free to marry as they wished and, therefore, appeared to free them from obligations to family and kin. Young women in Asante who attempted to assert themselves by delaying marriage found themselves locked up and charged with the crime of willful spinsterhood. In Meru, Kenya, girls rejected attempts to outlaw female circumcision and carried out the operation themselves. Generally, any attempt to impose legal definitions or controls on the cycle of maturation was fraught with difficulty and liable to misfire. To return to Roberts’s point, officials moved erratically between umpiring and intervention and often ended up confounded.59
The social and cultural impact of court cases and decisions has also directed attention to courts themselves as arenas of public performance as well as debate. Ruth Ginio’s discussion of the role of African court intermediaries asks who actually “controlled” court proceedings or had the necessary local knowledge to do so. Courts were not “blind,” but their sometime disregard for matters of status and consequence in, for example, treating women as agents rather than merely dependents was disconcerting to the powerful and could change the balance of power in court.60 As interpreted in Africa, the English common law tradition allowed a greater latitude in giving evidence, and plaintiffs, witnesses, and defendants made full use of this to “have their say.” What they thought important to say is often crucial to understanding both the moral sensibilities that informed the testimony and what was really at issue.61 Both Tapiwa Zimudzi and Stacey Hynd note that female defendants in capital cases might reject a gendered inclination toward leniency to claim their own independent agency.62 Richard Rathbone’s study of a high-profile murder case in Asante shows how “courtroom drama” can open up a wide area of inquiry.63
The Contribution of Legal Scholarship
Some aspects of recent legal scholarship have the potential to widen and enrich the field. Three areas of legal research are of interest to African historians: sovereignty, “states of exception,” and debates about the nature of “justice.” Scholars like Lauren Benton have moved beyond a rather monolithic (and Eurocentric) view of sovereignty as fixed and indivisible, an expression and vehicle of state power, to consider how it might vary both in time and space. States learned to live with sovereignty that was shared and contestable, as, for example, the British first did in India.64 Borderlands and other remote areas where officials (and police) were thin on the ground, “development” was minimal, and boundaries ill-defined might be administratively and legally uncertain, as well as inaccessible and intractable. Levels of policing tended to diminish as one moved from center to periphery, in effect creating different zones of rule or un-rule and giving law a spatial or even cartographic dimension.65 Benton has little directly to say about colonial Africa, but her work raises questions about the legal underpinnings of “indirect rule,” about colonial borders, and about the nature of “special” legal regimes on the periphery of rule and the status of their inhabitants as subjects without obligations, protections, and rights.66 The range of her inquiry in both time and space, from the establishment of English rule in Ireland to the administration of penal colonies in Australasia, is also significant, for two reasons. First, it should encourage Africanists to look at empire beyond Africa and to draw on scholarship from elsewhere. Indian history is an obvious, but still underutilized, source of comparative ideas.67 Second, it confirms that the flow of ideas and practices was not unidirectional, from metropole to empire, but reciprocal, and there are also inter-colonial and regional flows to consider. Empires were bounded as much by legal exchange and interaction as by the imposition of imperial sovereignty. Just as historians have been looking at regional economic and cultural movements, they should also look at legal transfers.68
The concept of “states of exception,” places and spaces where the rule of law is suspended or abridged by state power, is associated with the work of Giorgio Agamben.69 Although not addressing colonial issues directly, it nonetheless raises questions about the legal status of “states of emergency,” declared by colonial governments to deal with serious disorder without resort to martial law. Kenya and Nyasaland in the 1950s are cases in point. Colonial governors disposed of considerable discretionary powers under which they could suspend or limit rights and introduce new legal and judicial measures without public consultation.70 “Emergency powers” were thought to be exceptional, but, as Nasser Hussain has argued in an important study of the meaning and construction of the “rule of law,” a “state of emergency” is not abnormal but integral to the operation of law and to the maintenance and demonstration of state power, especially when the latter’s legitimacy is challenged. Law, in fact, provides for its own suspension under conditions that resist precise legal definition.71 How emergency powers might be used and with what degree of accountability could be highly controversial. The official report on the Nyasaland Emergency notoriously described Nyasaland as “no doubt only temporarily—a police state.” Criminal investigations in Kenya revealed, belatedly and reluctantly, a tendency to push the legal envelope and to move from “robust” methods to illegal actions, including torture, murder, and rape, under the umbrella of Emergency Regulations.72 Insofar as “the maintenance of law and order,” a central administrative concern, required intervention of this sort, the rule of law was revealed as not merely coercive and authoritarian but as resting on very uncertain ground. The legal qualms and administrative nervousness that colonial governments often showed in facing riots and unrest pointed to a similar unease.73 Understandably, scholarship on colonial disorder has tended to focus on its causes and effects rather than on its legal dimension, but scholars have begun to use counter-insurgency policing and executive interventions in the judicial process as a way of examining the legal foundations of the colonial state itself.74
The legal foundations of colonial rule can also be examined in less exceptional circumstances. Two recent lines of inquiry have revisited and refocused the old debate about the nature and provision of justice. One looks at views about justice articulated beyond the judicial and official domain by, among others, white settlers, African townspeople, and prophets. Most, though not all, accepted the rule of law, but not necessarily the rule of lawyers and officials.75 Beneath the nervous clamor of settler demands for stern laws and harsh punishments, it is possible to uncover a deeper view of the common law. Some critics saw the state itself as a tyranny, infringing on their rights as “true born Englishmen”; others, asserting a quasi-feudal sense of obligation at odds with impersonal bureaucracy, defended “their” Africans against injustice.76 Urban Africans, who supported vagrancy laws but protested when they threatened understood norms of urban life, invoked a different moral sensibility but, again, asserted their role as patrons. Their relationship to the “urban underclass” may have been more ambivalent than it appears.77 Rural whites and urban Africans expressed their views in print; prophets had visions. Because prophets engaged with a world that colonial officials could neither enter nor even apprehend, they were often thought politically suspect or delusional and their utterances crazed or subversive. They had followings, influence, and authority, which made them “dangerous,” but they had little concern with the colonial order. They called for moral regeneration. Their critiques of justice were focused elsewhere, but still had bite.78 These disparate voices and opinions do not always fit easily into political narratives about colonialism, but they were part of a larger and continuous questioning of colonial justice and authority.79 Colonial debates about the nature of justice, together with some of the recent legal scholarship on sovereignty, for example, might be part of an intellectual history of law in Africa.
There has also been a renewal of interest in criminalization and in the drafting of, and legislative debate over, individual ordinances, particularly those that dealt with matters that were legally problematic, like witchcraft or collective punishment, racially sensitive, such as rape and “immorality,” or had very wide implications beyond their stated objectives, such as vagrancy laws.80 How such laws were drafted, defended, and enforced, and what they were intended to do and why, can tell us much about a territory’s legal culture. The power to define crime, which could then be investigated and punished, was central to colonial authority, but it is not as straightforward an exercise as it might appear. Crime and criminality are constructions, not “natural” categories, and colonial states had sometimes complex and even contradictory reasons for criminalizing some sorts of behavior but not others. Some crimes accorded with local African sensibilities; others did not. Governments regarded the killing of witches as murder not as a civic duty, but they ignored adultery and witchcraft, potentially even more uncivil. Not surprisingly, perhaps, some Africans looked to nationalism for moral straightness as well as political emancipation.
Not only did colonial authorities criminalize behavior, they also created categories of people who required control. These included “wicked women,” unruly youth, and those with potentially “subversive” powers, including African politicians who could be redefined as “political agitators,” placed under surveillance, and sometimes “banned.” These categories had less to do with specific acts than with transgressive behavior and suspect demeanor. If witchcraft was the collective nightmare of the community, criminal categorization expressed that of officialdom.81 This becomes clearer if we look at the creation of “criminal communities.” While this was not an official legal designation as it was in India, it sprang from a similar combination of “information panic”—a feared loss of control over knowledge as well as persons—and evolutionary and diffusionist theory.82 Certain groups and communities might have inherent criminal tendencies, and these could even be passed on through genetic inheritance as well as recruitment. To understand this apparent phenomenon required what amounted to ethnographies of crime; control required special, and dubiously legal, measures of surveillance, punishment, and sequestration. Crime levels were real, but these constructions and their consequences tell us much more about the official than the “criminal” mind.83
Finally, what historiographic trends are discernible, apart from the increasingly widespread and sophisticated use of legal sources and the exploration of the relation between law and culture? There has been a greater awareness of fluidity, uncertainty, and contradiction and of the blurring of boundaries between, for example, “civil” and “criminal” or between “customary” and “colonial” law. If it was to retain its legitimacy and effectiveness, law had continuously to adapt. One important aspect of this is the unexpected and largely tacit convergence in criminal, as well as civil, law between indigenous and alien ideas of justice. Africans sought to adapt the law to conform to their own expectations and ends, reinterpreting abduction as theft, for example. Colonial officials allowed compensation to be paid out of fines and accepted that witches might be exiled after serving a sentence. Historians working in the still expanding field of “law and society” have followed Roberts and Shadle into the domestic and private sphere, using legal cases and issues to illuminate “hidden,” or at least difficult to access, aspects of social history, including domestic violence, sexuality, and family, age, and gender.84 Economic inequality is also now recognized—with gender, generation, and race—as a driver of legal conflict, with recourse to the courts becoming increasingly common in disputes over land and labor in late colonial times. If anything, law facilitated rather than ameliorated conflict. Its own contradictions undermined its claims to certainty and authority in what appeared to be a time of rapid change. If there was indeed a moral crisis of colonial rule for historians to consider, then legal doubt was at its center.
Sources for Colonial Legal History
The nature of legal and paralegal sources varies considerably, depending on the colonial territory concerned. Despite the accidents of time, termites, and transfer, a great deal remains in situ both in Europe and Africa. In all cases, it is necessary to understand what function documents served and, therefore, how and why they were produced.85
Printed sources comprise several broad categories.86 Local ordinances, Rules, and Proclamations for any territory were first published in Government Gazettes and then periodically consolidated and updated. Law codes were also printed. Reports of Commissions of Enquiry and other Government reports on specific topics, including legal topics, were published locally and in the metropole. Command Papers in Britain were for parliamentary use, but most were also available to the general public. Departmental Annual Reports from British colonies were printed and sent to the Colonial Office in London, at least from the early 1920s. Most relevant is the Judicial Department, primarily because of its statistical annual returns, but Police and Prison Reports can also be useful. Additionally, the Judicial Department was responsible for compiling periodic Law Reports that helped to create the body of precedent and are vital to historians interested in the development of criminal law and its enforcement in the courts because they elucidate important points of law and procedure. Law reports included Magistrates Circulars, drawing the attention of lay magistrates to particular points of law or to important judgements in the higher courts. Regional Courts of Appeal produced similar Reports. Legislative Assembly Debates are important for understanding how laws were drafted and debated, though they also covered many nonlegal matters. In territories with “unofficial” members, debate can be very illuminating.87 Newspapers are an important source for public debate via the editorial and correspondence columns and, in some cases, for reports of important trials.88
Manuscript sources comprise the great mass of legal and judicial material, the most important part of which consists of court records, including trial papers and transcripts, case registers, and other documents. While some African courts kept case records from early on, others did so only later and partially. The survival of case files from colonial courts also varies considerably. In district courts, evidence was not recorded systematically and in full as it was higher up. To some extent, these deficiencies can be made up by recourse to other sources. Court Registers, which were periodically checked, provide at least the details of cases and decisions, if not the evidence presented. Where judgements were routinely scrutinized by the bench, judicial confirmation files can provide details of cases as well as insights into the operation of the legal system. District Annual Reports generally covered district court activities and tabulated cases, albeit with widely varying accuracy and detail. District and central government files about cases—generally, but not always, criminal cases—can add details of prosecutions and enforcement and comments on policy.
The difference between areas where court records are numerous, rich, and cover a long period and areas where survival is poor is very striking. Survival and access acts as a major limitation on what can be done. Court records, however, are never entirely unmediated and complete in themselves. The files create something of an “official” narrative of proceedings. Judicial conventions of presentation and process shaped court proceedings from initial petition or arraignment to final judgement or sentence. Even with the greater flexibility allowed in Anglophone colonial courts, participants were constrained in what they could say, and what they said often had to be translated, for the court language was usually that of the colonial power. Official transcripts thus record statements at one or more removes. Moreover, all cases have histories. The “courtroom encounter” was usually only one moment in a longer interaction. Litigants, witnesses, and defendants might have had prior dealings with each other and perhaps expected to have dealings in future. Prior knowledge or relationships might have an important influence on testimony but would not necessarily be mentioned in court.89
In addition to court records, official correspondence, especially with the metropole, may also be useful. In British territories, ordinances had to be forwarded for approved by the Colonial Office, which might also call for returns of cases under particular ordinances or request the transcripts of high-profile or “sensitive” cases. Finally, other legal documents—wills, contracts, deeds, and land transfers—can be important for social history, where they exist in sufficient number. However, by their nature, they tend to privilege the urban, the acculturated, and the propertied over other segments of the population, at least until the later colonial period when record making and keeping became more widespread and routine.90
Using Colonial Legal Sources
Legal sources present both opportunities and difficulties and must be used carefully. The basic techniques of inquiry, however, are common to all branches of history and need no recapitulation here. Historians who study law and the courts specifically will also be aware of the conventions and methods of legal scholarship. This section therefore focuses on the use of legal sources for social and cultural history. How can legal material best be presented? What approaches and expository strategies work and for what purpose?
There are two main approaches, the choice depending partly on the topic of research and partly on the survival of records. The first is the case study approach, pioneered by early legal anthropologists like Max Gluckman and A. L. Epstein. This treated each case as a microcosm of the whole and fleshed it out with field interviews of participants. This is still the commonest approach, and the majority of the studies cited in this article use it.91 Historians, who cannot attend past court hearings and social negotiations, now understand the importance of establishing the full context by recourse to other sources and of situating each case in its time and place. They also confront the apparent paradox that cases—like all events—can be both unique and “typical.” Studies, therefore, must acknowledge the singularity while looking for the general. The problem is compounded by the fact that the accidents of survival tend to favor the exceptional.92 Case files often survive simply because they recorded events that were unusual or problematic in some way and, therefore worth keeping in the official memory. Yet the exceptional case may be highly misleading. There are, however, strategies for dealing with both the common and the exceptional. Aggregating cases, where possible, to create large data sets to work with allows us to see both what is normative and what is not in both assumptions and actions, provided that we pay attention to silences and absences in the texts. Two studies give a sense of what can be achieved. Richard Roberts made use of a database of thirty-six hundred civil cases from the French Soudan between 1905 and 1912, derived from surviving court registers, to look at change and instability in family relations in the aftermath of slavery. David Anderson drew on the files of over eleven hundred capital cases during the Kenya Emergency in the 1950s to examine how justice was, or was not, being delivered in desperate times.93
Constructing “thick narratives” is another approach from anthropology which here uses an exceptional case as the point of entry for a wide investigation of often multiple contexts.94 Hard cases may make for bad law, but they can also reveal and illuminate, and they frequently create a voluminous paper trail, precisely because they are conflicted. Thick narrative can be especially useful for revealing states of mind and multiple viewpoints in the “courtroom encounter” by linking each to a different part of the overall context. Colin Murray and Peter Sanders used the investigations into related cases of “medicine murder,” the longstanding practice of obtaining body parts from still-living victims for use in rituals of power, in Lesotho in the 1940s as a way of examining the structures of power and authority in the High Commission territory. Richard Waller followed investigations into the death of a white settler on a remote ranch in northern Kenya in the early 1930s to examine how several competing narratives, each presented by a different group of actors—settler, official, and African—were constructed and played out in court. Murray and Sanders used the investigation as the key; Waller used the trial. By contrast, Charles van Onselen used the unremarkable killing of a white petty criminal to unravel the criminal culture and networks of early Johannesburg. While these three examples all begin with serious criminal acts, there is no reason in principle why a similar approach could not be applied to civil cases.95
Like most historians, those in the legal field make some use of quantitative data, creating serial sets for comparisons over time and across colonies, for example, as part of larger studies of the operation of individual laws or of the instance of particular kinds of offense. Such comparisons can be illuminating, but they require careful handling to ensure that like is being compared with like. Colonial governments published legal statistics covering arrests, convictions, civil cases, and the like based on internal judicial and police annual returns. Sometimes, but by no means always, these included customary as well as colonial proceedings. How these returns were compiled and presented, however, reflected the interests of the different departments involved, varied very considerably between governments, and also changed over time. Anglophone reports retained the basic common law distinction between “offences against the person” and “offences against property.” These categories are too inclusive to be of much value in themselves but disaggregating them accurately can be very difficult. Returns organized by ordinance or code section are less common but far more useful. Similar problems emerge with arrest, prosecution, and conviction statistics. Context is important here. The number of people executed for murder, for example, is only of significance as a proportion of those arrested and prosecuted.96 Colonial governments had their own reasons for creating statistics, but, overall, with the exceptions noted earlier, quantitative methods are probably less important for understanding how law operated than the familiar sociocultural approaches.
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Jeater, Diana. Law, Language and Science: The Invention of the “Native Mind” in Southern Rhodesia, 1890–1930. Portsmouth, NH: Heinemann, 2007.Find this resource:
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Morris, Henry, and James Read. Indirect Rule and the Search for Justice: Essays in East African Legal History. Oxford: Clarendon, 1972.Find this resource:
Roberts, Richard. Litigants and Households: African Disputes and Colonial Courts in the French Soudan, 1895–1912. Portsmouth, NH: Heinemann, 2005.Find this resource:
Roberts, Richard. “Law, Crime and Punishment in Colonial Africa.” In Oxford Handbook of Modern African History. Edited by John Parker and Richard Reid, 171–188. Oxford: Oxford University Press, 2013.Find this resource:
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(1.) Bonny Ibhawoh, Imperialism and Human Rights: Colonial Discourses of Rights and Liberties in African History (Albany: State University of New York Press, 2007); and Emmanuelle Saada, “The Empire of Law: Dignity, Prestige and Domination in the ‘Colonial Situation.’” French Politics, Culture and Society 20 (2002): 98–112.
(2.) The best summation of the centrality of colonial law is in Kristin Mann and Richard Roberts, eds., Law in Colonial Africa (Portsmouth, NH: Heinemann, 1991), 3–5.
(3.) Unchanging social harmony existed largely in the minds of colonizers, in uneasy juxtaposition with a dystopian view of savagery. The imposition of colonial rule had itself done much to destroy “harmony”: acts of resistance could be as much to restore order as to challenge it. For an example of colonial courts seeking to impose order in a time of extreme uncertainty, see Marcia Wright, “Justice, Women and the Social Order in Abercorn, Northeastern Rhodesia, 1897–1903,” in African Women and the Law: Historical Perspectives, ed. Jean Hay and Marcia Wright (Boston: Boston University Papers on Africa 7, 1982), 33–50.
(4.) Robert L. Kidder, “Western Law in India: External Law and Local Response” in Social Systems and Legal Processes, ed. H. M. Johnson (San Francisco: Jossey-Bass, 1978), 155–180.
(5.) Karen Fields, Revival and Rebellion in Colonial Central Africa (Princeton, NJ: Princeton University Press, 1985).
(6.) Colonial states first faced the dilemma with the abolition of slavery, delayed and hedged about with legal safeguards lest it lead to social chaos and the disruption of production. See Frederick Cooper, From Slaves to Squatters: Plantation Labor and Agriculture in Zanzibar and Coastal Kenya, 1890–1925 (New Haven, CT: Yale University Press, 1980); Suzanne Miers and Richard Roberts, eds., The End of Slavery in Africa (Madison: University of Wisconsin Press, 1988); and Paul Lovejoy and Jan Hogendorn, Slow Death for Slavery: The Course of Abolition in Northern Nigeria, 1897–1936 (Cambridge, UK: Cambridge University Press, 1993). Later it emerged in the form of concerns about the growth of individualism, in land and property rights, for example, and the threat this posed to community. See Sara Berry, “Hegemony on a Shoestring: Indirect Rule and Access to Agricultural Land,” Africa 62 (1992): 327–355; Sally Falk Moore, “From Giving and Lending to Selling: Property Transactions Reflecting Historical Changes on Kilimanjaro,” in Law in Colonial Africa, ed. Mann and Roberts, 108–127; and Martin Chanock, “Paradigms, Policies and Property: A Review of the Customary Law of Land Tenure,” in Mann and Roberts, Law in Colonial Africa, 61–84.
(7.) Benjamin Lawrance, Emily Osborn, and Richard Roberts, eds., Intermediaries, Interpreters and Clerks: African Employees in the Making of Colonial Africa (Madison: University of Wisconsin Press, 2006).
(9.) E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (London: Allen Lane, 1975), 258–269.
(10.) For a useful summary, see Roberts, “Law, Crime and Punishment.” More detailed references can be found in “Crime and the Law in Colonial Africa,” Oxford Bibliographies Online.
(11.) Martin Chanock, The Making of South African Legal Culture (Cambridge, UK: Cambridge University Press, 2001).
(12.) Roberts, “Law, Crime and Punishment,” 175–176.
(13.) T. O. Elias, The Nature of African Customary Law (Manchester, UK: Manchester University Press, 1956); and Martin Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge, UK: Cambridge University Press, 1985). For “legibility,” see James C. Scott, Seeing like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven, CT: Yale University Press, 1998); and Mann and Roberts, Law in Colonial Africa, 33–35. Where colonial powers had taken over existing states, however, “chiefship” was remade and then invested with “tradition.”
(14.) Bernard Cohn, Colonialism and Its Forms of Knowledge (Princeton, NJ: Princeton University Press, 1996), chap. 3.
(15.) This was less true of larger more highly structured states like Asante, but there was still a commonality between ruler and ruled that was absent from colonialism.
(16.) Diana Jeater, “‘Their Idea of Justice Is So Peculiar’: Southern Rhodesia 1890–1910,” in The Moral World of the Law, ed. Peter Coss (Cambridge, UK: Cambridge University Press, 2000), 178–195; and Jeater, Law, Language and Science: The Invention of the “Native Mind” in Southern Rhodesia, 1890–1930 (Portsmouth, NH: Heinemann, 2007). Concern over Africans’ “peculiar” ideas distantly echoed Henry Maine’s evolutionist scheme in which societies progressed from status to contract and from civil wrongs (torts) to public wrongs (crimes). Maine saw the British in India as agents in this progress, but the result was rather to confirm difference between rulers and ruled. See Thomas R. Metcalf, Ideologies of the Raj, New Cambridge History of India, vol. 3, 4 (Cambridge, UK: Cambridge University Press, 1994), chap. 3.
(17.) Brett Shadle, “‘Changing Traditions to Meet Current Altering Conditions’: Customary Law, African Courts and the Rejection of Codification in Kenya, 1930–1960,” Journal of African History 40 (1999): 411–431.
(18.) William M. Hailey, An African Survey: Revised 1956 (Oxford: Oxford University Press, 1957), 641; and Sally Engle Merry, “Legal Pluralism,” Law and Society Review 22 (1988): 869–896.
(19.) Alice Conklin, “Colonialism and Human Rights, a Contradiction in Terms? The Case of France and West Africa, 1895–1914,” American Historical Review 103 (1998): 419–442. A small minority of Africans either retained earlier rights of citizenship or acquired an “assimilated” status that gave them access to the metropolitan codes of law.
(20.) Henry Morris and James Read, Indirect Rule and the Search for Justice: Essays in East African Legal History (Oxford: Clarendon, 1972), chap. 3; and Kenneth Roberts-Wray, “The Adaptation of Imported Law in Africa,” Journal of African Law 4 (1960): 66–78.
(21.) Trial by jury was generally reserved for Europeans. In cases with African defendants in the higher courts, judges were “assisted” by assessors, drawn from the defendants’ community. They might advise on “local custom” and deliver an opinion, but the degree of influence they could exert on judicial outcomes varied from colony to colony and was never decisive. See Bonny Ibhawoh, Imperial Justice: Africans in Empire’s Court (Oxford: Oxford University Press, 2013).
(22.) Racial differences arose partly from the way crimes were defined—witchcraft, for example, was not likely to be practiced by whites—but they were maintained by discretionary policing that took race and “standing” into account when considering pressing charges. Additionally, trial by jury generally favored white defendants in cases involving Africans. See, for example, David Anderson, “Punishment, Race and the ‘Raw Native’: Settler Society and Kenya’s Flogging Scandals, 1895–1930,” Journal of Southern African Studies 37 (2010): 479–497.
(23.) Berry, “Hegemony on a Shoestring.”
(24.) Mann and Roberts, Law in Colonial Africa, 16–18; and Gregory Mann, “What Was the Indigenat? The ‘Empire of Law’ in French West Africa,” Journal of African History 50 (2009): 331–353. Belgian and Portuguese practice is less well studied, but see Hailey, African Survey: Revised, 603–606.
(25.) Roberts, “Law, Crime and Punishment,” 172–173; Roger Gocking, “Colonial Rule and the ‘Legal Factor’ in Ghana and Lesotho,” Africa 67 (1997): 61–85; and Martin Chanock, Law, Custom and Social Order : The Colonial Experience in Malawi and Zambia (Cambridge, UK: Cambridge University Press, 1985), 111–116. The most comprehensive official survey of the various forms of “indirect rule” is still William M. Hailey, Native Administration in the British African Territories, Four Parts (London: Her Majesty’s Stationary Office, 1950).
(26.) Anthony G. Hopkins, “Property Rights and Empire Building: Britain’s Annexation of Lagos, 1861,” Journal of Economic History 40 (1980): 777–798; Mann and Roberts, Law in Colonial Africa, 18–19. The concern with establishing legal rights also reflected humanitarian ideas of trusteeship and the abolitionist view of the connection between property and freedom in the aftermath of slavery. See Philip D. Curtin, The Image of Africa: British Ideas and Action, 1780–1850 (Madison: University of Wisconsin Press, 1964), 473–478; and Chanock, “Paradigms, Policies and Property,” 61–84.
(27.) There were at least eighteen African lawyers registered in Lagos between 1880 and 1915. See Kristin Mann, Marrying Well: Marriage, Status and Social Change Among the Educated Elite in Colonial Lagos (Cambridge, UK: Cambridge University Press, 1985), 20–21, 128–132.
(28.) The “Four (original) Communes” in Senegal, dating back to the post-1815 period, offer a comparative Francophone example.
(29.) Southern Rhodesia achieved self-government in 1923 and could then enact its own laws, influenced more by South Africa than Britain.
(30.) Henry Morris, “A History of the Adoption of Codes of Criminal Law and Procedure in British Colonial Africa, 1876–1935,” Journal of African Law 18 (1974): 6–23. The Indian Penal Code (1860) and the later Codes of Criminal and Civil Procedure were specifically designed to establish sets of procedures, derived from an amalgam of English and local Indian law, which could be followed by lay magistrates and applied universally. These codes were applied directly in East Africa at first until replaced by codes closer to English practice in the early 1930s. See Morris and Read, Indirect Rule and the Search for Justice, chap. 4.
(31.) Roberts, “Law, Crime and Punishment,” 175–176; and Allan Christelow, Muslim Law Courts and the French Colonial State in Algeria (Princeton, NJ: Princeton University Press, 1985).
(32.) Oversight was exercised by the colony Bench of Supreme Court justices, all of whom were barristers qualified in England. They had the authority to examine and confirm or revise all judgements in the lower courts.
(33.) This raised judicial concerns, voiced by the Bushe Commission, that the conjuncture of district magisterial and administrative powers might lead to decisions that were based on political expediency rather than legal principle.
(34.) The highest level of appeal was technically to the Judicial Committee of the Privy Council in London, but few cases reached that point because of the stringent criteria for appeal and the cost involved. See Ibhawoh, Imperial Justice.
(35.) Unless noted otherwise, this paragraph is based on Morris and Read,Indirect Rule and the Search for Justice.
(36.) Quoted in Morris and Read, Indirect Rule and the Search for Justice, 324–325.
(37.) Rules of evidence were a particular bone of contention.
(38.) C. Clifton Roberts, Tangled Justice: The Case for the African Native (London: Macmillan, 1937). Roberts had been a law officer in East Africa. His views were shared by other influential Africanists.
(39.) Senior law officers, unlike lay magistrates, moved from one territory to another and from colony to metropole. They were members of what amounted to an imperial legal mandarinate, and their views thus tended to reflect wider interests and perspectives.
(40.) Report of the Commission of Enquiry into the Administration of Justice in Kenya, Uganda and Tanganyika Territory in Criminal Matters, Cmd 4623 (London: His Majesty’s Stationary Office, 1934). The Report includes official responses. For background, see Paul Swanepoel, “Colonial Judges, Administrative Officers and the Bushe Commission in Interwar Kenya and Tanganyika,” Fundamina: A Journal of Legal History 23 (2017): 89–110.
(41.) Raymond Buell, The Native Problem in Africa, 2 vols. (New York: Macmillan, 1928); and William M. Hailey, An African Survey: A Study of Problems Arising in Africa South of the Sahara (Oxford: Oxford University Press, 1938).
(42.) Hailey, African Survey: Revised, 622–642; Anthony Allott, “The Judicial Ascertainment of Customary Law in British Africa,” Modern Law Review 20 (1957): 244–263; Anthony Allott, ed., The Future of Law in Africa (London: Butterworth, 1960); and Roberts-Wray, “Adaptation of Imported Law.”
(43.) Henrika Kuklick, “The British Tradition,” in A New History of Anthropology, ed. Henrika Kuklick (Oxford: Blackwell, 2008), 52–78. Anthropologists associated with the Rhodes-Livingstone Institute in Zambia (founded 1937) were prominent here. Funding for social research came partly from the Colonial Office in London, though some officials remained skeptical about the value of “practical anthropology.” See Richard Brown, “Anthropology and Colonial Rule: Godfrey Wilson and the Rhodes-Livingstone Institute, Northern Rhodesia,” in Anthropology and the Colonial Encounter, ed. Talal Asad (New York: Humanities Press, 1973), 173–197; Henrika Kuklick, The Savage Within: The Social History of British Anthropology, 1885–1945 (Cambridge, UK: Cambridge University Press, 1991). For useful discussion of late colonial urban studies on the Copperbelt, see Sally Engle Merry, “The Articulation of Legal Spheres,” in African Women and the Law, ed. Hay and Wright, 68–89; and James Ferguson, Expectations of Modernity: Myths and Meanings of Urban Life on the Zambian Copperbelt (Berkeley and Los Angeles: University of California Press, 1999), 170–189.
(44.) Isaac Schapera, Tribal Legislation among the Tswana of the Bechuanaland Protectorate (London: Lund, Humphries, 1943); and Max Gluckman, The Judicial Process among the Barotse of Northern Rhodesia (Manchester, UK: Manchester University Press, 1955).
(45.) Gluckman, Judicial Process; A. L. Epstein, The Administration of Justice and the Urban African: A Study of Urban Native Courts in Northern Rhodesia (London: Her Majesty’s Stationary Office, 1953); and Lloyd Fallers, Law without Precedent: Legal Ideas in Action in the Courts of Colonial Busoga (Chicago: University of Chicago Press, 1969), but see David Cohen, “‘A Case for the Basoga’: Lloyd Fallers and the Construction of an African Legal System,” in Law in Colonial Africa, ed. Mann and Roberts, 239–254.
(46.) Paul Bohannan, Justice and Judgement among the Tiv (London: Oxford University Press, 1957); Philip Gulliver, Social Control in an African Society (London: Routledge and Keegan Paul, 1963); A. L. Epstein, Juridical Techniques and the Judicial Process, Rhodes-Livingstone Paper No. 23 (Manchester, UK: Manchester University Press, 1954); and Merry, “Articulation of Legal Spheres.”
(47.) June Starr and Jane F. Collier, eds., History and Power in the Study of Law: New Directions in Legal Anthropology (Ithaca, NY: Cornell University Press, 1989), 1–28; and Sally Falk Moore, Social Facts and Fabrications: Customary Law on Kilimanjaro, 1880–1980 (Cambridge, UK: Cambridge University Press, 1986). Quotation from Lawrence Rosen, “Islamic ‘Case Law’ and the Logic of Consequence,” in History and Power, ed. Starr and Collier, 303. Significantly, Moore advocated combining archival and field research to achieve a greater time-depth.
(48.) Rosen, “Islamic ‘Case Law,’” 302–319; Chanock, Law, Custom and Social Order; and Moore, Social Facts and Fabrications.
(49.) Laura Nader, “The Anthropological Study of Law,” American Anthropologist, 67 (1965): 3–32; and Sally Engle Merry, “Law and Colonialism,” Law and Society Review 25 (1991): 889–922.
(50.) Hay and Wright, African Women and the Law; and Mann and Roberts, Law in Colonial Africa.
(51.) Martin Chanock, “Making Customary Law: Men, Women and Courts in Colonial Northern Rhodesia,” in African Women and the Law, ed. Hay and Wright, 53–54.
(52.) Mann and Roberts, Law in Colonial Africa, 3–58.
(53.) Mann and Roberts, Law in Colonial Africa, 36–43.
(54.) Locally prominent men in Southern Rhodesia took advantage of the Defamation Ordinance to defend their reputations in court against “slander” and, in so doing, to demonstrate their privileged familiarity with colonial legal institutions and procedures. See Alison Shutt, “Litigating Honor, Defamation, and Shame in Southern Rhodesia,” African Studies Review 61, no. 3 (2018): 79–98. Shutt also shows how the reach of colonial law was extended through its use in previously private matters by those with knowledge and access.
(55.) Richard Roberts, Litigants and Households: African Disputes and Colonial Courts in the French Soudan, 1895–1912 (Portsmouth, NH: Heinemann, 2005); and Brett Shadle, “Girl Cases”: Marriage and Colonialism in Gusiiland, Kenya, 1890–1970 (Portsmouth NH: Heinemann, 2006).
(56.) Roberts, Litigants and Households, 231.
(57.) Mann, Marrying Well, 71.
(58.) Judith Byfield, “Women, Marriage, Divorce and the Emerging Colonial State in Abeokuta (Nigeria) 1892–1904,” in “Wicked” Women and the Reconfiguration of Gender in Africa, ed. Dorothy Hodgson and Sheryl McCurdy (Portsmouth, NH: Heinemann, 2001), 27–46; Sean Hawkins, “‘The Woman in Question’: Marriage and Identity in the Colonial Courts of Northern Ghana, 1907–1954,” in Women in African Colonial Histories, ed. Jean Allman, Susan Geiger, and Nakanyike Musisi (Bloomington: Indiana University Press, 2002), 116–143; Elizabeth Schmidt, “Negotiated Spaces and Contested Terrain: Men, Women and the Law in Colonial Zimbabwe, 1890–1939,” Journal of Southern African Studies 16 (1990): 622–648; Teresa Barnes, “The Fight for Control of African Women’s Mobility in Colonial Zimbabwe, 1900–1939,” Signs 17 (1992): 586–608; Koni Benson and Joyce Chadya, “Ukubinya: Gender and Sexual Violence in Bulawayo, Colonial Zimbabwe, 1946–1956,” Journal of Southern African Studies 31 (2005): 587–610; Elizabeth Thornberry, “Sex, Violence and Family in the Eastern Cape,” in Domestic Violence and the Law in Colonial and Postcolonial Africa, ed. Emily Burrill, Richard Roberts, and Elizabeth Thornberry (Athens, OH: Ohio University Press, 2010), 117–137; and Marie Rodet, “Continuum of Gendered Violence: The Colonial Invention of Female Desertion as a Customary Criminal Offence, French Soudan, 1900–1949,” in Domestic Violence and the Law, ed. Burrill, Roberts, and Thornberry, 74–93.
(59.) Mann, Marrying Well, 113–114, 124–125; Jean Allman, “Rounding up Spinsters: Gender Chaos and Unmarried Women in Colonial Asante,” in “Wicked” Women, ed. Hodgson and McCurdy, 130–148; Lynn Thomas, “Imperial Concerns and ‘Women’s Affairs’: State Efforts to Regulate Clitoridectomy and Eradicate Abortion in Meru, Kenya, c. 1910–1950,” Journal of African History 39 (1998): 123–145; and Paul Ocobock, An Uncertain Age: The Politics of Manhood in Kenya (Athens, OH: Ohio University Press, 2017), esp. chap. 1. The determination of biological and legal age and its relation to social age was a constant problem.
(60.) Ruth Ginio, “Negotiating Legal Authority in French West Africa: The Colonial Administration and African Assessors, 1903–1918,” in Intermediaries, Interpreters and Clerks, ed. Lawrance, Osborn, and Roberts, 115–135; and Alan Booth, “‘European Courts Protect Women and Witches’: Colonial Law Courts as Redistributors of Power in Swaziland 1920–1950,” Journal of Southern African Studies 18 (1992): 253–275.
(61.) Anthony N. Allott, “Evidence in African Customary Law,” reprinted in Readings in African Law, 1, ed. Eugene Cotran and Neville Rubin (London: Frank Cass, 1970), 83–90. Higher courts followed English procedure but tended to be flexible over the form of African testimony. Quasi-legal enquiries were even more so—see Richard Waller, “Arbitrary Proceedings? Collective Punishment in Kenya,” unpublished paper, 2012.
(62.) Tapiwa Zimudzi, “African Women, Violent Crime and the Criminal Law in Colonial Zimbabwe, 1900–1952,” Journal of Southern African Studies 30 (2004): 499–517; and Stacey Hynd, “Deadlier Than the Male? Women and the Death Penalty in Colonial Kenya and Nyasaland, c. 1920–1957,” Stichproben 12 (2007): 13–33. Colonial courts were reluctant to execute women and tended to assume that they acted under male pressure.
(63.) Richard Rathbone, Murder and Politics in Colonial Ghana (New Haven, CT: Yale University Press, 1993).
(64.) Lauren A. Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge, UK: Cambridge University Press, 2010); Jane Burbank and Frederick Cooper, “Rules of Law, Politics of Empire,” in Legal Pluralism and Empires, 1500–1850, ed. Lauren Benton and Richard J. Ross (New York: New York University Press, 2013), 279–293; and James Brennan, “Lowering the Sultan’s Flag: Sovereignty and Decolonisation in Coastal Kenya,” Comparative Studies in Society and History 50 (2008): 831–861.
(65.) Benton,A Search for Sovereignty, chap. 5; and Hannah Whittaker, “Frontier Security in North East Africa: Conflict and Colonial Development on the Margins c. 1930–1960,” Journal of African History 58 (2017): 381–404. In remote border areas, effective jurisdiction could cross territorial boundaries, either by agreement or default. See Nene Mburu, “Delimitation of the Elastic Ilemi Triangle: Pastoral Conflicts and Official Indifference in the Horn of Africa,” African Studies Quarterly 7 (2003): 15–37; and A. I. Asiwaju, “Law in African Borderlands: The Lived Experience of the Yoruba astride the Nigeria-Dahomey Border,” in Law in Colonial Africa, ed. Mann and Roberts, 233–234.
(66.) For one comparative example of special regimes on the periphery, see Benjamin Hopkins, “The Frontier Crimes Regulation and Frontier Governmentality,” Journal of Asian Studies 74 (2015): 369–389.
(67.) Antoinette Burton, Empire in Question: Reading, Writing and Teaching British Imperialism (Durham, NC: Duke University Press, 2011). Citations of some relevant scholarship on India can be found throughout this volume.
(68.) Jeremy Prestholdt, Domesticating the World: African Consumerism and the Genealogies of Globalization (Berkeley: University of California Press, 2008); and Clare Anderson, “Convicts, Carcerality and Cape Colony Connections in the Nineteenth Century,” Journal of Southern African Studies 42 (2016): 429–442.
(69.) Giorgio Agamben, State of Exception (Chicago: Chicago University Press, 2005). For a critique, see Benton, Search for Sovereignty, 282–287.
(70.) These powers derived ultimately from the Crown and were modeled after British wartime Emergency Powers. The author of the official history of the Kenya Emergency, an ex-colonial civil servant, described the governor’s powers as “absolute and dictatorial.” See The Origins and Growth of Mau Mau: An Historical Survey, Cmd 1030 (London: Her Majesty’s Stationary Office, 1960), 343.
(71.) Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2003). Hussain draws mainly on India.
(72.) Report of the Nyasaland Commission of Enquiry, Cmd 814 (London: Her Majesty’s Stationary Office, 1959), 1; David Anderson, Histories of the Hanged: Britain’s Dirty War and the End of Empire in Kenya (London: Weidenfeld & Nicholson, 2005); and David M. Anderson and Julianne Weis, “The Prosecution of Rape in Wartime: Evidence from the Mau Mau Rebellion, Kenya 1952–60,” Law and History Review 36 (2018), 267–291.
(73.) Martin Thomas, Violence and Colonial Order: Police, Workers and Protest in the European Colonial Empires, 1918–1940 (Cambridge, UK: Cambridge University Press, 2012); and Marc Matera, Misty Bastian, and Susan Kent, The Women’s War of 1929: Gender and Violence in Colonial Nigeria (Basingstoke, UK: Palgrave Macmillan, 2012).
(74.) Anderson, Histories of the Hanged; David M. Anderson, “Mau Mau on Trial: Dedan Kimathi’s Prosecution and Kenya’s Colonial Justice,” in Dedan Kimathi on Trial: Colonial Justice and Popular Memory in Kenya’s Mau Mau Rebellion, ed. Julie MacArthur (Athens OH: Ohio University Press, 2017), 233–257. Capital punishment is of considerable interest here—see Robert Turrell, White Mercy: A Study of the Death Penalty in South Africa (Westport, CT: Praeger, 2004); and Stacey Hynd, “Killing the Condemned: The Practice and Process of Capital Punishment in British Africa c. 1900–50s,” Journal of African History 49 (2008): 403–418.
(75.) African subjects could also appeal to justice when they took their rulers to court for infringing the law.
(76.) Settler critics claimed that their “rights” were both inalienable and portable. See Brett Shadle, The Souls of White Folk (Manchester, UK: Manchester University Press, 2015).
(77.) Abosede George, “Within Salvation: Girl Hawkers and the Colonial State in Development Era Lagos,” Journal of Social History 44 (2011): 837–859; and Andrew Burton, African Underclass: Urbanisation, Crime and Colonial Order in Dar-es-Salaam (Oxford: James Currey, 2005).
(78.) Sloan Mahone, “The Psychology of Rebellion: Colonial Medical Responses to Dissent in British East Africa,” Journal of African History 49 (2008): 241–258; and David Gordon, Invisible Agents: Spirits in a Central African History (Athens, OH: Ohio University Press, 2012). Gordon argues that colonial authorities were likely to see “religious” movements that they could not understand as politically rather than spiritually motivated.
(79.) D. R. Peterson, Ethnic Patriotism and the East African Revival: A History of Dissent (Cambridge, UK: Cambridge University Press, 2012); Derek Peterson, “Nonconformity in Africa’s Cultural History,” Journal of African History 58 (2017): 35–50; and Emma Hunter, “Dutiful Subjects, Patriotic Citizens and the Concept of ‘Good Citizenship’ in Twentieth Century Tanzania,” Historical Journal 56 (2013): 257–277.
(80.) Richard Waller, “Witchcraft and the Law in Colonial Kenya,” Past and Present 180 (2003): 241–275; Waller, “Arbitrary Proceedings?”; Jock McCulloch, Black Peril White Virtue: Sexual Crime in Southern Rhodesia, 1902–1935 (Bloomington: Indiana University Press, 2000); Ushehwedu Kufakurinani, “Empire and Sexual Deviance: Debating White Women’s Prostitution in Early 20th Century Salisbury, Southern Rhodesia,” in Subverting Empire, ed. Will Jackson and Emily Manktelow (Basingstoke, UK: Palgrave Macmillan, 2015), 205–225; and Robert Gordon, “Vagrancy, Law and ‘Shadow Knowledge’: Internal Pacification, 1915–1939,” in Namibia under South African Rule: Mobility and Containment. 1915–46, ed. Patricia Hayes, et al. (London: James Currey, 1998), 51–76. The control of movement and space was a major legislative concern—see Andrew Burton and Paul Ocobock, “The ‘Travelling Native’: Vagrancy and Colonial Control in British East Africa,” in Cast Out: Vagrancy and Homelessness in Global and Historical Perspective, ed. A. Beier and Paul Ocobock (Athens, OH: Ohio University Press, 2008), 270–301; and Giorgio Miescher, Namibia’s Red Line: The History of a Veterinary and Settlement Border (New York: Palgrave Macmillan, 2012).
(81.) References and discussion in the Criminal Categories section of Crime and the Law in Colonial Africa; Dorothy Hodgson and Sheryl McCurdy, “Introduction,” in Hodgson and McCurdy, “Wicked” Women, 1–24; and Richard Rathbone, “Police Intelligence in Ghana in the Late 1940s and 1950s,” Journal of Imperial and Commonwealth History 21 (1993): 107–128. For French practice, see Kathleen Keller, “Political Surveillance and Colonial Urban Rule: ‘Suspicious’ Politics and Urban Space in Dakar, Senegal, 1918–1939,” French Historical Studies 35 (2012): 727–749.
(82.) For Indian examples, see C. A. Bayly, Empire and Information: Intelligence Gathering and Social Communication in India, 1780–1870 (Cambridge, UK: Cambridge University Press, 1996), chap. 4; and Henry Schwarz, Constructing the Criminal Tribe in Colonial India (Oxford: Blackwell, 2010). In a sense, criminal communities were the dark obverse of “martial races.” See Anthony Kirk-Greene, “‘Damnosa Hereditas’: Ethnic Ranking and the Martial Races Imperative in Africa,” Ethnic and Racial Studies 3 (1980): 393–412.
(83.) David Anderson, “Black Mischief: Crime, Protest and Resistance in Kenya’s Western Highlands,” Historical Journal 36 (1993): 851–877; and David Pratten, The Man-Leopard Murders: History and Society in Colonial Nigeria (Bloomington: Indiana University Press, 2007). Generally, categorization preceded condemnation, but Crawford’s literally magisterial study of Shona witchcraft was based entirely on court case material: J. R. Crawford, Witchcraft and Sorcery in Rhodesia (Oxford: Oxford University Press, 1967).
(84.) See, for example, chapters in Burrill, Roberts, and Thornberry, Domestic Violence and the Law and in Jackson and Manktelow, Subverting Empire; Emily Burrill, States of Marriage: Gender, Justice, and Rights in Colonial Mali (Athens, OH: Ohio University Press, 2015); and Ocobock, An Uncertain Age. Further references and discussions can be found in the sections on Women and the Courts and Unruly Women in Crime and the Law in Colonial Africa.
(85.) In view of the controversy over the “migrated archive” of British colonial records and the extent to which sensitive material was destroyed at independence, it should be noted that, while some relevant material has evidently been destroyed or withheld, this represents only a small and highly specific part of the whole in Africa. For a survey, see Anthony Badger, “Historians, a Legacy of Suspicion and the ‘Migrated Archives,’” Small Wars and Insurgencies 23 (2012): 799–807.
(86.) Fuller references to printed official material can be found in the Official Sources section of Crime and the Law in Colonial Africa. Virtually all official printed materials noted here were also sent to the national repositories of “interested powers,” including the Library of Congress.
(87.) Dominions (South Africa and latterly Southern Rhodesia) had independent parliaments; some protectorates, including Buganda and the High Commission Territories, had recognized “native” assemblies with some lawmaking powers.
(88.) For a recent survey, see Derek Peterson and Emma Hunter, “Print Culture in Colonial Africa,” in African Print Cultures: Newspapers and Their Publics in the Twentieth Century, ed. Derek Peterson, Emma Hunter, and Stephanie Newell (Ann Arbor: University of Michigan Press, 2016), 1–46.
(89.) Mann and Roberts, Law in Colonial Africa, 45. For an example of a close reading with deep background knowledge, see John Lonsdale, “Kenyatta’s Trials: Breaking and Making an African Nationalist,” in Coss, Moral World of the Law, 196–239. For the potential value of newspaper coverage, see Bridget Grogan, “Perceptions of Daisy de Melker: Representations of a Sensational Trial,” Journal of Southern African Studies 42 (2016): 125–142. For a discussion of the methodological issues raised by the analysis of a single complex court transcript, see Katrina Keefer, “Poro on Trial: The 1913 Special Commission Court Case of Rex v. Fino, Bofio and Kalfalla,” African Studies Review 61, no. 3 (2018): 56–78.
(90.) Mann, Marrying Well.
(91.) Mann and Roberts, Law in Colonial Africa, 44–47.
(92.) The fact that a crime was reported was the exception, especially in rural areas where self-help and silence were the rule. Why people went to court at all is a question in itself worth asking.
(93.) Richard Roberts, “Women, Household Instability and the End of Slavery in Banamba and Gumbu, French Soudan, 1905–1912,” in Women and Slavery, vol. 1, ed. Gwyn Campbell, Suzanne Miers, and Joseph Miller (Athens OH: Ohio University Press, 2007), 281–305; and Anderson, Histories of the Hanged.
(94.) The classic example is Clifford Geertz, “Deep Play: Notes on the Balinese Cockfight,” Daedalus 101 (1972): 1–37, but more immediately relevant is Laura Stoler, “‘In Cold Blood’: Hierarchies of Credibility and the Politics of Colonial Narratives,” Representations, 37 (1992): 151–189.
(95.) Colin Murray and Peter Sanders, Medicine Murder in Colonial Lesotho: The Anatomy of a Moral Crisis (Edinburgh: Edinburgh University Press, 2005); Richard Waller, “Bringing Murder to Court: The Death of Theodore Powys,” unpublished paper, 2017; and Charles van Onselen, “Who Killed Meyer Hasenfus? Organized Crime, Policing and Informing on the Witwatersrand, 1902–8,” History Workshop Journal 67 (2009): 1–22.
(96.) Conviction and acquittal rates are of comparative importance, as, in capital cases, is the proportion of sentences remitted by the executive (the prerogative of mercy delegated to governors). See Hynd, “Killing the Condemned.”