African Law and the Historian

African Law and the HistorianAuthor(s): Jay GordonSource: The Journal of African History, Vol. 8, No. 2 (1967), pp. 335-340Published by: Cambridge University PressStable URL: http://www.jstor.org/stable/179487 .

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Journal of African History, vIII, 2 (1967), pp. 335-346 335 Printed in Great Britain

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AFRICAN LAW AND THE HISTORIAN

BY JAY GORDON

THE study of African law, like the study of African history, is largely of recent origin. Some early work on indigenous African law dating from the turn of the century is available; and there are collections of colonial ordinances enacted in the nineteenth century with comments by contemporary legal officers. The inter-war years produced anthropological studies, inspired by the theories of Malinowski, covering both East and West Africa. In particular, Rattray, Meek and Talbot dealt with the customary laws of the Ashanti and the peoples of northern and southern Nigeria, whilst Driberg, Roscoe and Lucy Mair gave accounts of those of the Interlacustrine nations. Also during this period, Buell and Hailey in their mammoth surveys shed light on the laws and legal institutions of Africans under colonial rule and on colonial administrations themselves.

Impressive as the list is, it is only since the end of the Second World War that an intensive and systematic approach to the subject has been employed, and only in the last decade that it has borne fruit. The establishment of the Journal of African Administration in I949 provided a forum in which those interested in the legal problems confronting colonial administrations could air their views. The movement of African territories towards independence in the I950s en- gendered further discussions of their legal systems in journals as impressive as Juridical Review, Modern Law Review and International and Comparative Law

Quarterly. By the middle of the decade, African Law was established as a subject in its own right and attracted enough general interest to warrant the foundation of the Journal of African Law in 1957, under the editorship of A. N. Allott, now Professor of African Law at the University of London.

Since then, the field has expanded by leaps and bounds. Almost every former British colonial territory now has its own Law School and sports its own Law Journal. An American publisher, Oceana, has opened shop in Lagos and Nairobi, producing the East African Journal of Law. And publishers in Britain have not been left behind. Butterworth's 'African Law' series began in I960 with Allott's Essays in African Law, and now comprises twelve volumes, including a wide range of titles covering customary and colonial law. Sweet and Maxwell's twenty-two volume 'Law in Africa' series followed immediately, concentrating almost exclusively on Ghanaian and Nigerian Law; and its stablemate, Stevens and Sons, is currently producing a series entitled, 'The British Commonwealth, the Development of Its Laws and Constitutions', with works already published on Tanganyika, Uganda, Ghana and Sierra Leone, and more promised in I967.

The result of this proliferation has been, paradoxically, a tendency towards parochialism, to the exclusion of the wider considerations of African law. This tendency is understandable and not entirely unwelcome at the present time: there is a great need to establish the broad principles underlying the laws of individual African territories; further, a thorough study of African customary



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law is essential for the guidance of those who administer the legal systems; and, thirdly, the need for trained legal personnel in Africa makes the appearance of such series welcome at this time. But this should not lead us to overlook the gaps in a subject that can loosely be termed 'African Legal History'. Of approximately forty volumes comprising the three series on African Law, only a handful have approached their subject historically and none can be said to have written legal history. This of course was not the intention of these authors, and as legal texts for the use of aspiring lawyers they are invaluable. But their concern with present-day constitutions, laws and legal systems-with no more than a cursory glance backwards-has resulted in several serious shortcomings, the least of which is the necessity for frequent revision of texts. Indeed, in the past few years there has seemed to be a causal relationship between the publication of a book on the constitutional development of an African territory and the subsequent abrogation of its most recent constitution. Descriptions of the laws and constitutions of Tanganyika and Uganda1 preceded by weeks the amalgamation of Tanganyika and Zanzibar in I965 and the overthrow of the Kabaka of Buganda in March I966. Prior to this, Rubin and Murray's The Constitution and Govern- ment of Ghana2 had to be revised in the light of further developments under the Nkrumah regime, and the events of January 1966 will doubtless make necessary a third revision.

Besides this practical drawback, there is a more serious criticism to be made of these works. Of necessity, their scope is restricted to present-day law and legal institutions in Africa; but this has led to a willing acceptance of earlier, uncritical assessments of their history. For example, most of the accounts of nineteenth century juries and lawyers are misrepresented. It is commonly held that the establishment of a jury system in West Africa proved a failure. The charges are that jurors were prejudiced in favour of friends, relatives or fellow- tribesmen, and that the complexity of civil cases was beyond their capabilities. Such charges are the result of a too eager acceptance of the glib writings of Victorian observers, and the one-sided explanations of officials. There is, in fact, little truth in the complaints. The abolition of civil juries in West Africa in i866 was agreed to only with great reluctance by the Secretary of State, Lord Carnarvon, who admitted that no evidence had been produced to indicate the return of even one improper verdict in a civil case.3 Furthermore, the suggestion that civil juries be restored in Sierra Leone at the end of the century met with no opposition from the Governor, but was quashed when the spectre of an acquittal in the case of a defaulting official ten years before was deliberately revived.4 As regards criminal cases, trial by jury in both Lagos and the Gold Coast was restricted in the i87os to the more serious offences and even at times to capital crimes alone. This, however, did not reflect the views of colonial judges, who praised African juries and considered them as competent as their counterparts in English Sessions Courts. Some judges even went so far as to

1 J. S. R. Cole and W. N. Denison, Tanganyika, The Development of its Laws and Constitution (London, I964); H. F. Morris and J. S. Read, Uganda, The Development of its Laws and Constitution (London, I966).

2 L. Rubin and P. Murray, The Constitution and Government of Ghana, (London, I96I and I964).

3 C. Fyfe, A History of Sierra Leone (London, I962), 345. 4 Ibid. 496.

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advocate extending the jury system not only to all criminal cases but to civil suits as well.5

A similar ambiguity is found in the treatment of African lawyers. The accusations that they fomented spurious litigation, had only a pecuniary interest in their cases, and that they were alien to the country in which they practised, are distortions. From the i87os the Supreme Courts of the Gold Coast and Lagos were empowered to adjudge that a case had been brought 'maliciously or without probable grounds', and the lawyers involved forfeited their fees and were liable for the costs of the case in the event of the client's refusal to pay. The courts were also empowered to regulate attorneys' fees; overcharging was punishable by a fine or suspension of the practitioner's licence.6 In fact, there is no record of any disciplinary action taken against a lawyer for contesting a spurious suit or for charging excessive fees to his client. It is impossible to deny or confirm the charge that lawyers had a purely pecuniary interest in their cases, but it is surely no more applicable to the African practitioner than to his European colleague.

It is of course true that lawyers in West Africa were mostly aliens who came to do well in the newly established courts. From the initial institution of colonial courts, the lack of English-trained lawyers had to be made good by the intro- duction of lawyers from older British colonies. We find, for example, West Indian lawyers practising in the early Sierra Leonian courts, and a subsequent movement of Sierra Leonian lawyers to the newly established courts of the Gold Coast and Lagos. A similar movement eastward by lawyers from the Gold Coast, Lagos and Sierra Leone accompanied the establishment of colonial courts in the Niger Delta at the turn of the century. Without these movements along the West African coast, legal representation in the courts would have been left (at least in the first two decades) to untrained, barely literate 'advocates' and 'bush lawyers'. The use of such representatives, occasioned from time to time by the shortage or restriction of qualified men, has shown what results might have ensued had their employment been more widespread.7

The current view of nineteenth-century African juries and lawyers as in- competent and unethical appears, therefore, to have no foundation and is the result of an uncritical and narrow approach to the historical background. But there remains the suspicion that the fault also lies in the peculiar nature of the 'legal mind'. It has been said, with some justice, that 'if you think that you can think about a thing, inextricably attached to something else, without thinking of the thing it is attached to, then you have a legal mind'. This trait, it seems, has produced discussions of laws being promulgated, courts established and constitutions framed with almost no reference to the social, economic or political factors that influenced these events. To be fair, the primary interest engaging students of African law has been the present; but in their indifference to the

6 West African legal opinions on juries at Lagos and the Gold Coast can be found in the following letters and dispatches: Smith to Griffith, 2I March i88r, and Macleod to Rowe, I9 April I882, in Rowe to Kimberley, I7 April I882, CO 96/139; Bailey to Rowe, 29 April I882, and Watt to Rowe, 6 May I882, in Rowe to Kimberley, i May I882, CO 147/50; Marshall to Bramston, 15 June i882, CO 96/147.

6 The Supreme Court [Gold Coast Colony] Ordinance, number 4 of 3I March 1876, Schedule I, Order viii, Rules 7-12.

7 For the activities of self-styled 'advocates' and 'lawyers' on the Gold Coast in the i86os, see, D. Kimble, A Political History of Ghana, 1850-1928 (London, I963), 68-70.

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past they have left unanswered questions which historians must pose and seek answers to. The legal mind is content to trace the development of laws and institutions and to describe the changes that have taken place. The historian, however, must start where the lawyer leaves off, and search for the reasons that brought about such changes and the effects these changes themselves had.

To be sure, an attempt has been made to relate the political aims of one African government and the shape which its public law has taken. In a book entitled Law and Social Change in Ghana, William Burnett Harvey, formerly professor of Law and Dean of the Faculty of Law at the University of Ghana, sets out to analyse legal developments in Ghana since i95I.8 As we are told in the preface, his primary focus is 'on the pattern of claims or the demands in a particular society that have shaped the positive law and, insofar as this can be determined, the reciprocal effect of that law on the structure, processes and values of the society' (p. viii). Professor Harvey's general thesis is that law is 'a technique of social ordering' (p. 343). As such, the emphasis of his book is on the instrumental nature of the law; law is 'value-neutral'. In this context, laws will reflect the values of those who manipulate the technique, and so apprise us of their motives. By examining the legal instruments governing the allocation and control of public power, the status of the traditional authorities, the legal profession and the judicial structure, the author comes to two conclusions: namely, that legal and constitutional developments in Ghana during this period were dominated by the values of an 'elite', the CPP; and that these values were oriented towards the concept of national unity.

Professor Harvey is quite aware that legal studies such as this book 'need to be supplemented by systematic factual inquiry to enable one to discern more fully the motive forces behind the making of law' (p. ix). Unfortunately, he does not seem to have put this into practice. Besides constitutions and statutes, the author's conclusions are based on government (Ghanaian) White Papers, the 'responsible' (see the dust-cover) Ghanaian press, occasional comments from The New York Times, and his own impressions, gleaned from almost two years' residence in the country. References to secondary sources are scanty-there is no bibliography-and Professor Harvey does not seem to have read any further works on Ghana since David Apter's The Gold Coast in Transition. His failure to heed his own words has considerably weakened the author's case, for it is at best difficult to determine whether autocratic powers are acquired to further goals such as national unity, or whether the cry of national unity is used to further the acquisition of autocratic powers. The author concludes that the former was the case, but no evidence is marshalled to support this conclusion, and none to dispel the general impression that the latter was indeed true.

Professor Harvey fails in yet another respect. We are informed in the preface that the author's primary focus is on those forces that have shaped the law, 'and insofar as this can be determined, the reciprocal effect of that law on the structure, processes and values of the society' (p. viii). But he does not seem to have taken the trouble to assess 'the reciprocal effects'. The author too easily assumes that 'the available data do not establish the extent to which this value [i.e. national unity] is actually accepted by the people' (p. 355); and, apart from the political manifestations, he does not establish the causal relationship between constitutional and legal developments and the structure or processes of Ghanaian

8 W. B. Harvey, Law and Social Change in Ghana (Oxford, 1966).

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society. The promise of the title is, therefore, not fulfilled, for scant attention is paid to anything resembling 'social change'.

Professor Harvey's work does afford good insight into the political motives that have inspired legal and constitutional changes, but he has given us very little analysis of the impact of these changes on the fabric of African society. Of course the social and economic effects of the more important legal changes in Africa have been noticed by some Africanists. C. C. Wrigley, for example, shows that by altering the tenure by which land was held in Buganda, the powers of those who received mailo grants 'came to be expressed partly in terms of real property. Henceforward they were not merely office-holders but also landed proprietors. Henceforward Buganda had what it had not had before, a permanent aristocracy.'9 And R. C. Pratt warns that 'any consideration of the significance of the Uganda Agreement [of I900] which limits itself to the legal aspects is bound to be most inadequate'.10 But less revolutionary alterations in the law must also have brought about change in African societies, and it remains for the legal historian to explore such avenues.

One other factor has received only limited consideration. Practically no assessment has been made of the efficacy of laws enacted by colonial governments, and none whatsoever of the daily functioning of colonial courts. It has been too readily assumed that the enactment of laws and the establishment of courts in nineteenth-century Africa had virtually the same effects as in England. In the nineteenth century, however, Stipendiary Magistrates and District Commissioners in Africa were seldom trained barristers or solicitors, and the law they admini- stered resembled more closely their own concepts of equity than the common law, doctrines of equity and statutes of general application of England. This sometimes held true even of the higher courts. African legal experts have taken the clause, 'in cases where no express [customary or English law] rule is applicable to any matter in controversy, the court shall be governed by the principles of justice, equity, and good conscience',11 to mean that the court could only decide whether English or customary law was applicable. But in fact throughout the nineteenth century, West African judges were interpreting the clause as 'the case must be decided according to the principles of natural justice'.12 In addition, any assessment of the working of the courts should take account of the personnel of colonial judiciaries; their possession or lack of legal training; their attitudes towards Africans, and the African's opinion of their conduct on the bench. Such an assessment should also endeavour to discover how important these courts were to the African populations of the different colonies; for example, the type of cases brought before colonial courts instead of before traditional tribunals could be determined. And finally, it should not be impossible to consider how fair British justice in Africa was at this time.

A final point: works on African law can be of considerable value to the African historian. They can provide a useful starting point for historians interested in other aspects of the African past. Laws can be an expression of social needs, or a reflexion of the dominant motives of a society, and as such they shed further

9 L. A. Fallers (ed.), The King's Men (London, I964), 3I. 10 D. A. Low and R. C. Pratt, Buganda and British Overrule (London, 1960), 193. 11 The Supreme Court [Gold Coast Colony] Ordinance, op. cit. Section I9. 12 H. W. Hayes Redwar, Comments on Some Ordinances of the Gold Coast Colony...

(London, i909), 65.

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light on the social, political and economic forces prevailing in society. At the same time, legal records-deeds, records of litigations and transcripts of criminal trials-are the stuff of which social and economic history are made. Court records of matrimonial or betrothal suits can reveal the diminishing influence of traditional authority. Actions involving debt can indicate economic currents on either a local or sectional scale. And criminal statistics and case records point out the tensions in the society and the impact of cultural change on individuals. There are voluminous records in Africa, of both colonial and customary courts, that have still not been looked at.

These then are the tasks that are open to the legal historian of Africa: the motives behind legal development need exploring; the consequences of laws and courts on African societies should be ascertained; and the efficacy of colonial laws and courts can be more accurately described. Although it was Maitland who thought it best for lawyers to write legal history, a much broader view of the subject than the legal mind offers is necessary. Historians should not be put off by the technical nature of the subject or the latinized terms of the trade. Historians may even be better equipped than lawyers for such a study, for they bring with them an element of irreverence towards the law which shows by what absurd shifts and accidents much of it has been arrived at. As a social historian of English law has noted: 'The layman who writes in general terms of recent law may inevitably seem irresponsible to the lawyer. But such a discussion of the relationship of law to society is what students of both history and law need and rarely get.'13

13 A. Harding, A Social History of English Law (London, 1966), 9.

THE PATHS FROM INDEPENDENCE

BY MICHAEL TWADDLE

DURING the last ten years, nearly forty African countries have exchanged colonial tutelage for sovereign independence. While historians have been pre- occupied with analysing the causes of this massive transfer of power, social scientists of other disciplines have also been busy assessing its consequences. The studies under review1 represent a random sample from the most recent of these assessments. In this article the sample is first broken down for brief individual review, then reassembled for fuller and more general discussion.

1 Gwendolen M. Carter (ed.), National Unity and Regionalism in Eight African States (Cornell University Press; London: Oxford University Press, 1966, 63s.); P. C. Lloyd (ed.), The New Elites of Tropical Africa (Oxford University Press for the International African Institute, 1966, 50s.); Herbert J. Spiro (ed.), Africa: The Primacy of Politics (Random House, New York, I966, $2.25). Claude E. Welch, Jr., Dream of Unity: Pan-Africanism and Political Unification in West Africa (Cornell University Press, Ithaca, New York, 1966, $8.oo); I. William Zartman, International Relations in the New Africa (Prentice-Hall, Inc., Englewood Cliffs, 1966, $5.95).

light on the social, political and economic forces prevailing in society. At the same time, legal records-deeds, records of litigations and transcripts of criminal trials-are the stuff of which social and economic history are made. Court records of matrimonial or betrothal suits can reveal the diminishing influence of traditional authority. Actions involving debt can indicate economic currents on either a local or sectional scale. And criminal statistics and case records point out the tensions in the society and the impact of cultural change on individuals. There are voluminous records in Africa, of both colonial and customary courts, that have still not been looked at.

These then are the tasks that are open to the legal historian of Africa: the motives behind legal development need exploring; the consequences of laws and courts on African societies should be ascertained; and the efficacy of colonial laws and courts can be more accurately described. Although it was Maitland who thought it best for lawyers to write legal history, a much broader view of the subject than the legal mind offers is necessary. Historians should not be put off by the technical nature of the subject or the latinized terms of the trade. Historians may even be better equipped than lawyers for such a study, for they bring with them an element of irreverence towards the law which shows by what absurd shifts and accidents much of it has been arrived at. As a social historian of English law has noted: 'The layman who writes in general terms of recent law may inevitably seem irresponsible to the lawyer. But such a discussion of the relationship of law to society is what students of both history and law need and rarely get.'13

13 A. Harding, A Social History of English Law (London, 1966), 9.

THE PATHS FROM INDEPENDENCE

BY MICHAEL TWADDLE

DURING the last ten years, nearly forty African countries have exchanged colonial tutelage for sovereign independence. While historians have been pre- occupied with analysing the causes of this massive transfer of power, social scientists of other disciplines have also been busy assessing its consequences. The studies under review1 represent a random sample from the most recent of these assessments. In this article the sample is first broken down for brief individual review, then reassembled for fuller and more general discussion.

1 Gwendolen M. Carter (ed.), National Unity and Regionalism in Eight African States (Cornell University Press; London: Oxford University Press, 1966, 63s.); P. C. Lloyd (ed.), The New Elites of Tropical Africa (Oxford University Press for the International African Institute, 1966, 50s.); Herbert J. Spiro (ed.), Africa: The Primacy of Politics (Random House, New York, I966, $2.25). Claude E. Welch, Jr., Dream of Unity: Pan-Africanism and Political Unification in West Africa (Cornell University Press, Ithaca, New York, 1966, $8.oo); I. William Zartman, International Relations in the New Africa (Prentice-Hall, Inc., Englewood Cliffs, 1966, $5.95).

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African Law and the Historian