How colonial law displaced African dispute settlement mechanisms

Interference with the traditional system of justice, which worked well within the context of its area of jurisdiction, created a monster that we are yet to slay.

Before European imperialists established and colonised African territories, African traditional communities’ fora of justice were at family, shrines, churches and mosques.

African traditional communities also used other alternative dispute resolution mechanisms that included reconciliation, mediation and arbitration.

There was also to be found a certain amount of legislated law in the monarchies of Uganda, South Africa, parts of Central Africa and Islamic parts of West Africa where the law was handed down by the rulers.

In Kenya, customary laws were not uniform though there were similarities which transcended different ethnic groupings. There were enormous differences in the structure and content brought about by different social and kinship systems, religious and cultural practices.

On the other hand, European settlers believed that English law was the culmination of centuries of evolution and was unsurpassed for its justice and logic.

From the outset, one of the more contentious differences between African customary law and English law was regarding the institution of marriage. Whereas English law provided for monogamous relationships, African customary law permitted as many wives as one could afford.

Obviously Africans were not about to change this aspect of their traditional practices. In practice, I think there was not much difference because divorce was very common in English culture and all that the law did was to restrict relationships to one wife at “any one time”. All one had to do was to pay the attendant “exit costs” of divorce and start all over again with a new partner!

Ill-suited

Nonetheless, the settlers insisted that English law and legal procedure were extremely ill-suited to the African context. They insisted that the judiciary and administration must twist the law to fit settler needs and bend Africans to their will.

It must be personal and racially biased; the punishment swift and sharp. In many ways settlers held an older, cruder understanding of the law, one more suited to manorial estates or Jim Crow of America.

After Kenya was declared a Protectorate in 1895, for ease of administration, the British settlers imported laws and systems of governance from Britain, and British laws which had been codified in India, to apply to Kenya.

These laws were applied without regard to the already existing native society and were mainly for the benefit of the settlers.

The natives were allowed to practice African customary law while the Hindus, who had emigrated from India with the railway, were permitted to practice Hindu customary law in the area of personal law, as the Muslims and Arab communities practised Islamic law.

Initially, the colonial authorities empowered village elders and chiefs to settle disputes, but the opportunities this provided for manipulation were all too apparent.

These traditional dispute settlement organs gradually evolved into tribunals and were accorded official recognition when the Native Courts Ordinance was promulgated in 1907. This ordinance established native tribunals which were intended to serve each of the ethnic groups in Kenya.

The Chief Native Commissioner had powers to set up, control and administer the tribunals. Similar African tribunals were established at the divisional level of each district.

The governor was authorised to appoint a Liwali (administrative official) in Mombasa to adjudicate matters in the Muslim community.

Appeals to the decisions of tribunals were filed with District Officers (DO), District Commissioners (DC), and Provincial Commissioners (PC) while the final appeal lay with the Supreme Court. Decisions made by administrative officers were subject to hindsight overview by the judiciary.

While the traditional council of elders exercised authority over very restricted areas based around a clan or village in the pre-colonial era, the tribunals created by the Provincial Administration covered a much larger jurisdiction of three or four locations.

Chiefs were excluded from the tribunals. Members were appointed by the PC after some effort at informal consultation, ostensibly from the ranks of traditional elders and other locally influential persons.

Lord Hailey pointed out in 1940 that the tribunals created had “little in common with the courts recognised by native customs but were largely the result of experiments made by administrative officers on their personal initiative and responsibility”.

Supervisory powers

In effect, this gave the Provincial Administration wide appellate and supervisory powers, independent of the formal court system and setting a basic pattern of administrative domination that would last over 30 years.

The tribunals were also troubled by problems of corruption. Elders were paid a pittance by the government which they supplemented by the traditional method of collecting fees from the parties in a case.

This practice led to the suspicion of widespread corruption which was difficult for the administrators to prove because the perpetrators remained tight-lipped, as is the case today, being interested parties.

In 1945, an official investigation into the tribunals reported; “There were signs that in some areas (specifically in Kikuyuland) powerful and influential Africans were abusing their positions in order to acquire for themselves large ‘estates’at the expense of the more helpless, improvident and simple-minded members of the community; and there is a strong suspicion that tribunal members have often backed the interests of the new privileged class and have even joined the ‘racket’ themselves.” Not surprisingly, no action was taken on this report.

In an attempt to mollify the first serious outburst of African nationalism in 1921-22, the colonial government moved to create the final major instrument for the containment of African politics.

In 1924-25, the first Local Native Councils were brought into operation in the more “advanced” (that is, the more politically sensitive) districts.

Their explicit objective was to counteract any “mischievous tendencies which might develop in native political societies” by providing local forums where Africans could let off steam harmlessly and a local government body that would exercise limited legislative and executive functions, thereby providing Africans with tutelary experience in the “responsible” conduct of their own affairs.

The segregated system of justice prevailed until 1962 when the African courts were transferred from the Provincial Administration to the Judiciary.

While not condoning the actions of African elders sitting on the tribunals, interference by the colonial administration with a traditional system of justice which worked well within the context of its area of jurisdiction, created a monster with growing tentacles, which we have not been able to slay up to this day.

The author is a retired banker and motorcycle enthusiast. E-mail [email protected]