The Question of African Agency in Colonial Courts and Social Conflict Term Paper

This study of African agency in colonial courts and subsequent social conflicts in Africa applied law to establish and maintain its rule. Looking critically at these aspects, I intend to approach Law as a coercive force that assisted colonial state power to help in securing order, enhancing capitalist development, and restructuring of social relations. ^[1]

Significantly, I examine how colonialists enforced new sets of rules and regulations to enable a general process of societal and cultural change. This process was a mission of civilization of colonialism. I critically look at how the mission was legitimized by importing Western set of laws that replaced traditional customs and rules.

While historians were almost certain that Western laws were assumed to be more civilized, majority of colonial societies are still dealing with the effects this process and the legacy of this legal pluralism. ^[2]

In Africa, colonialists enforced dual legal system in which colonialist law was superimposed in existing legal system. However, both sets of law depended on colonial state legal system.

The establishment and maintenance of the legal system was a central feature European colonialist for many years. Majority of colonial societies are still dealing with the effects this process and the legacy of this legal pluralism. ^[3]

In this context, I argue that it is important for the reader to understand that law was necessary for establishment of colonial order as it was the central mechanism of defining relationships between state and society. I guess colonial states were able to set boundaries of behaviour and control spectrum of private transactions through both criminal and civil law regulations. ^[4]

More importantly, although the law was vital in the colonizing process, there existed some conflict concerning the ways in which this process actually affected those colonized. The law application of the law in strict sense perpetuated colonial interests and limited demands placed on the colonized land and labour. ^[5]

I try to explain how the law was applied by both the colonized and the colonizer to resolve important disputes concerning authority and legitimacy. ^[6]

In addition, I maintain that the entrenched state system of governance include established laws and institutions adopted in African colonies. Historians explore modes of control that recognize customary rules as well as state laws imported from colonizer states. I argue that it is important for historical scholars to understand that customary law referred to the law of colonized people as accepted by colonial administrations.

Customary law was established by colonial administrations to guide disputes concerning non Europeans only. Many historians have justified the need by colonial administrations to have customary law as a method of providing autonomy and self governance to people they thought were not ready to appreciate the benefits of civilization.

In addition, I argue that customary law enabled colonial powers to use limited human and financial resources to effectively control its conquered territories. Furthermore, I intend to reveal the purpose customary laws were codified by colonial administrations into fixed, formal and written rules enforced by colonial courts. ^[7]

Colonial Courts and Social Conflicts

The study of “Girl Cases: marriage and colonists in Gusiiland, Kenya, 1890-1970” requires people to understand the question of African Agency in colonial courts and the resultant social conflicts. While examining this context, I aim to trace the changes and explain; the intersections of the colonial trends in social and legal thinking, colonial administrative policies in Kisii, colonial political economy, and the ideals and actions of individual Gusii people that shaped this history.

This study analyzes the importance of African courts, that is, “the cornerstone to indirect rule by colonies”. ^[8] Despite the importance of these African courts, little work has been encouraged by historians.

Following widely publications in the 1950s and 1960s on African courts, historical appreciation of African law emerged in the 1980s. I argue that colonial administrators sought customary law of each tribe they wished to govern; I feel that indirect rule performed better if officials could implement legitimate laws accepted by those ruled.

Whereas most African societies had not adopted an alterable, uncomplicated set of laws, colonial officials were not deterred. The study relies heavily on both civil and criminal records from the council of elders that served Gusiiland. The council of elders adjudicated many cases every year. Shadle examined court cases relating to marriage disputes in Gusii, Kenya.

The scholar was more concerned with criminal cases of adultery, elopement (runaway Women), indecent assault and abduction. I use the court records to effectively apply to uncover the question of African agency in colonial courts and resultant social conflicts. ^[9]

Eloping (Run Away) Women and African Societies

Since historians indicate years of interwar as problematic for African women the earliest period of colonization, African women found colonial masters sympathetic to their suffering. ^[10] I deduce that this scenario changed in the early 1920s and 1930s.

History indicates that colonialists had discovered women in rural areas as important for agricultural production. Prior to this period, women were important for social and physiological reproduction of men for wage labour. I conclude that they were confined to their rural farms to serve colonial interests as well as rural patriarchs. ^[11]

From the study, I also reveal that; rural patriarchs at that time sought avenues to maintain authority over their women (wives and daughters). For these colonialists to use customary law (indirect rule) to maintain social stability and keep colonial rule, they required African rulers’ (senior men) to operate.

They discovered the importance of cooperating with African elders in maintaining social order. African elders similarly asked for state help to control their womenfolk. Historians allude that colonial administrations strengthened these laws and monitored women movements with the sole aim of establishing authority and loyalty of African elders. Historians argue that African courts were established by colonial states to solve intra-African conflicts.

African courts adopted customary laws which were interpreted by senior elders as court officials in ways interestingly beneficial to themselves. I agree that these courts applied their authority to regulate the actions of women and youthful men. ^[12]

This historiography tries to prove that the subordinated under colonialism contested efforts that empowered their superiors. As we examine the studies of peasants, slaves and workers during colonialism in Africa, we realise the majority contested exploitation by either Europeans of fellow Africans.

As scholars project, every power nexus expects the subordinated to contest the relations that empower their superiors. Elaborate studies of peasants, slaves and workers proved that Africans resisted their exploitation, whether by Europeans or other Africans. ^[13]

Abductions

In this book, I wish to examine the effects of colonialism and how it was felt in Gusiiland, Kenya. I believe, colonialists thought there rule functioned only with the support of “tribal” leaders^[14].

The necessity of such thinking will become apparent when we consider; “temperament of colonial administrators, their social and educational backgrounds, made them to appreciate strong patriarchal authority.” ^[15] Men in Gusiiland resorted to abduction to acquire wives in the later 1800s. ^[16]

I argue that this evoked pitched conflicts between clans in Gusiiland. An abductor capable to hold his catch long enough so his gambles pay off. Historians allude that accumulating bride-wealth in the 1890s was virtually difficult as disease destroyed large herds; as a result this led to escalation on the number of abductions in Gusiiland. ^[17]

After 1900, the number of cattle rose and marriage became affordable. Consequently, the number of abductions decreased remarkably. Ultimately, abductors and men taking in runaway women had the intension of marriage. Abductors employed the mode of violence and rape against their subjects. Shadle avers that they threatened and used physical assault to break the woman’s spirit. Popular brutal means they used included punches, knives, clubs, and others on women. ^[18]

Besides brutality, abductors raped their victims as well. They sought to impregnate their victims as soon as possible. Although premarital pregnancy did not ruin a girl’s chance of marriage, it was impaired. The affected women were intimidated through unjust branding. Abductees who became pregnant through this brutality so few options.

Majority resigned to the forced unions. As court records reveal admission of one woman, after having been abducted for three months, “now I am pregnant and I don’t know what to do.” ^[19] Still in a desperate position, she later admitted agreeing to marry the abductor even though he had no cattle to settle the marriage. In essence, I deduce that maintenance of encouraged patriarch authority created marital conflicts in Gusiiland.

Colonial State Representatives and marriage Disputes

This study of “colonial state representatives and marriage disputes in Gusiiland” requires readers to examine the powers granted to chiefs, headsmen and other indirect rulers that made it possible for men looking for their abducted women easy.

I approach the study by explaining that there was no overreaching authority in Gusii highlands during pre-colonial period; and this made it difficult for tracking down women who had run away to any clans. The power conferred to colonial state representatives enabled men to move with relative safety between clans when tracking down the runaway women.

Litigants were encouraged by administrators to meet the council of elders (etureti) before going to court (ritongo). ^[20] The status of the council of elders was contradictory. The colonial administration viewed the council of elders as a resuscitation of indigenous authorities; Gusii people on the other hand, regarded the council of elders as an invention of the colonial era. The book notes that they continued to seek guidance of their home elders (abanyamaiga).

This elders pre-dated colonial rule and included all the elders from the lineage. In contrast, the council of elders were few, elected and appointed as headsmen. They also had a jurisdiction of a large geographical area rather than lineages. ^[21]

The study of “Slavery and the Birth of an African City” reiterates that colonial administrations established law to enable them engage with Africans who resisted access to resources, labour, and colonial power and authority. ^[22]

I believe Africans contested European morality and culture. In the process of this interaction, Africans experienced the realities of colonialism. In away, both Africans and Europeans shaped the law and institutions during colonial period. Historians allude that Africans used law as a resource of resistance against colonialism.

By looking at this study, readers should discover that they used legal rules and procedures as weapons of African resistance. ^[23]

Buoyed with African resistance to direct intervention and in the interest of checking the costs of administration, indirect rule by colonialists retreated from aggressive legal and governmental reform. ^[24] Colonial masters still endeavoured to civilize African institutions gently and through remote control.

They did not wish to rush the process to avoid the risk of losing the stability of native society. The native society had political and social organization that was well ordered. In this system, all members had definite series of responsibilities to one another.

Thus, the British administrator was then tasked with responsibility of reforming indigenous administration from within indigenous institutions. ^[25]

Indirect rule was appropriate to the British to provide a solution to the challenge of administering the vast African empire. A wave of administrative reforms encouraged the spread of native administration across the British Empire. The historical account of this reforms incorporated indigenous systems of law and government, and this helped identify these indigenous systems and governing through local authorities. ^[26]

This also required colonial administrator to identify pliable candidates. Roberts and Mann historical account found the British social anthropologists ready to tackle challenges. They found Africans to be best suited to serve the British, due rewards that accompanied the office. I discovered that native administration was easy to implement where stable states existed. However, the system created difficulties in areas as well.

Indirect rule in practice encouraged instability. Mann and Roberts note that, although colonial administrators failed to notice it, colonialists imposed themselves on societies engrossed in tussles over leadership and power and the terms under which they were executed. The British built their colonial rule on conflict and change through traditional systems of authority as central to their strategies. ^[27]

Some of the kind of authorities the British sought did not exist in some places. Where local rulers could not be found by administrators, they established them, for instance; the Igbo of Nigeria. In Igbo land, the British established native administration around Macdonald and Moor’s warrant chiefs.

They reaffirmed there executive authority as well as judicial authority. Combining these responsibilities and resting them in single individuals went contrary to Igbo pre-colonial political systems. ^[28] As a result, authorities in Igbo-land lacked legitimacy of their counterparts in Northern Nigeria. The British social anthropologist sent to unmask the source of Aba women’s war, blamed in part the enforcement of indirect rule. ^[29]

According to the anthropologist, native authorities were seen to be more powerful than pre-colonial village councils. In addition, these authorities used their judicial and executive powers to serve their personal interests. This generated widespread hostility. Women in Igbo-land protested when chiefs were empowered to collect taxes. ^[30]

History provides that British were not the only ones who incorporated Africans into colonial law and government. The Portuguese, French and Belgians as well incorporated Africans into their colonial law and government. The French West African government faced a similar conflict faced by the British administration when its indirect rule model resulted to Aba women’s conflict in South-eastern Nigeria. ^[31]

The French also faced conflicts over authority and customs as it codified native jurisdictions and procedures in the French West African government. The period that followed immediately colonial conquests witnessed sizeable migration, urbanization and social change. I am confident that this resulted in rapid growth in urban centres and reorganization in rural societies of different ethnic groups. These groups engaged in domestic relationships, and took their grievances to native courts.

The government introduced laws specifying customs prevailed in different circumstances in response to growing number of civil conflicts over marriage, divorce, inheritance and succession fronted by litigants practicing different customs. Nevertheless, it was not easy to find qualified assessors to help both Africans and Europeans who presided over the tribunals^[32].

In sum, we must know that the British and the French adopted the policy of governing their colonies through local systems of law. This became an ideological template to the British and French for the transformation of African societies that conformed to their model of colonial rule.

I discovered that the executive and judicial authority was linked by this template. The competence of native authorities depended in the concept of indirect rule. Yet, customary law was established out of collaboration of Africans who sought to establish new forms of access to resources and labour.

In addition, Europeans were looking for local authorities to occupy positions generated by their concepts of African societies. ^[33]

Accordingly, the study portrays colonial beliefs as not standing alone. They faced African representatives and their own administrators at every point. The need of colonial administrators to rule their subjects through native legal and political systems produced opportunities for indigenous people through custom representation. Colonial administrators strived to civilize African institutions through indirect rule. ^[34]

The study of “Litigants and Household African Disputes in French Soudan” on the other hand, takes a historical look at the relationship between the formations of a new system of native courts in the French Soudan in 1905. It also examines how women responded to this new system of native courts.

Further, it enlightens readers to understand how the French colonial government charged with responsibility of managing the operations of these courts was mesmerized with the vast numbers of women requiring divorce. Two interpretations are provided as to why African women through these new courts sought divorce during the early colonial period.

As a result, this influenced court practices and drove native policy. The first interpretation explains many cases of women seeking divorce due to wretched circumstances in marriage; and second interpretation provided divorce as undermining the authority of the household head and family stability. ^[35]

Women Initial Reactions to the New Courts

The French administrators were caught off guard by the vast numbers of women requiring divorces when new courts were implemented in 1905. ^[36] The court records available indicate frequent incidences of divorce cases sought by women before the provincial tribunal. Women in the French Soudan realized initially that the new courts addressed their grievances.

The new courts acted favorably to them as they were able to accept their requests to end marriages they did not prefer. Plaintiffs needing divorce in the French Soudan were required to articulate their reasons for needing to dissolve their marriages. ^[37]

Reasons such as abandonment, mistreatment, non-payment of bride wealth, spouse illnesses, incompatibility and others were cited as the main trigger for divorce. ^[38]

The examination of the history of custom and Islamic law in the native courts of the French Soudan looks at customary and Islamic family law in native courts in relation to establishment of new courts in 1905. ^[39]

By this I was able to trace emergence of these conflicts to the late eighteenth and early nineteenth century. We also discover that reforms in French colonial policies and subsequent revolutionary reforms occurred in France at that period.

The study examines extensively the conflicts as a result of French colonial policy, and looks at how African litigants applied new courts to confound expectations of their colonial master. ^[40]

This study requires readers to comprehend the colonial legal system as established in 1903 and implemented in 1905. The legal system had procedural problems affecting legal policy and cultural issues in the West African colonial establishment. ^[41]

I argue that the established legal system presented thoughts harbored by the French administrators in relation to Islamic law and also African culture. Sharia law aspects in this law enabled custom and Muslim family law to function together and also guided on how non-Muslims solved their disputes. ^[42]

It also provides procedure for African judges in making judgments. They did not put into consideration the extent of African customs variability. Furthermore, we discover that they did not anticipate litigants to new courts would cause the need for cultural strategies.

Historically, colonial legal system was established to enforce uniformity and regularity in administration of justice in the French Soudan. I believe the system mandated establishment of courts and provide regular forms of reporting. While Richard Roberts suggested “codification of customs to allow use of customs to solve problems”, this was not fully realized^[43] .

Ii is necessary to understand that the new courts could not complete improvisation. More importantly, I argue, the colonial administration while establishing the new legal system did not project the enormity of social changes.

The system was established on social changes that were profound. It politicized the courts by establishing new opportunities for litigants to apply native courts to solve disputes in new ways. ^[44]

Bibliography

Mann, Kristin. 2007. Slavery and the Birth of an African City, Lagos, 1760-1900. Indiana: Indiana UP, 2007.

Roberts, Mann K. 1991. Introduction: Law in Colonial Africa. London: Heinemann.

Robert, Richard. 2005. Litigants and Household African Disputes and Colonial Courts in the French Soudan. London: Heinemann.

Shadle, Brett. Girl Cases: Marriage and Colonialism in Gusiiland. London: Heinemann.

Footnotes

1. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 5.
2. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 6.
3. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 8.
4. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 4.
5. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 6.
6. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 5.
7. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 8.
8. Shadle Brett. Girl Cases: marriage and Colonialist in Gusiiland, Kenya (London: Heinemann, 2006), xxi.
9. Shadle Brett. Girl Cases: marriage and Colonialist in Gusiiland, Kenya (London: Heinemann,2006), xxvi.
10. Shadle Brett. Girl Cases: marriage and Colonialist in Gusiiland, Kenya (London: Heinemann,2006), xxvi.
11. Shadle Brett. Girl Cases: marriage and Colonialist in Gusiiland, Kenya (London: Heinemann,2006), xxvi.
12. Shadle Brett. Girl Cases: marriage and Colonialist in Gusiiland, Kenya (London: Heinemann,2006), xxvii..
13. Shadle Brett. Girl Cases: marriage and Colonialist in Gusiiland, Kenya (London: Heinemann,2006), xxvi.
14. Shadle Brett. Girl Cases: marriage and Colonialist in Gusiiland, Kenya (London: Heinemann,2006), xxvi.
15. Shadle Brett. Girl Cases: marriage and Colonialist in Gusiiland, Kenya (London: Heinemann,2006), xxv.
16. Shadle Brett. Girl Cases: marriage and Colonialist in Gusiiland, Kenya (London: Heinemann,2006), xxvi.
17. Shadle Brett. Girl Cases: marriage and Colonialist in Gusiiland, Kenya (London: Heinemann,2006), xxvi.
18. Shadle Brett. Girl Cases: marriage and Colonialist in Gusiiland, Kenya (London: Heinemann,2006), xxvii.
19. Shadle Brett. Girl Cases: marriage and Colonialist in Gusiiland, Kenya (London: Heinemann,2006), xxvi.
20. Shadle Brett. Girl Cases: marriage and Colonialist in Gusiiland, Kenya (London: Heinemann,2006), xxiii.
21. Shadle Brett. Girl Cases: marriage and Colonialist in Gusiiland, Kenya (London: Heinemann,2006), xxiv.
22. Mann Kristin. 2007. Slavery and the birth of an African City (Indiana: Indianapolis UP, 2007), 4.
23. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 3.
24. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 5.
25. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 5.
26. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 7.
27. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 9.
28. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 5.
29. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 37.
30. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 11.
31. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 6.
32. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 6.
33. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 5.
34. Roberts Richards and Mann Kristin. Law in Colonial Africa. (Ndiana: Indiana UP,1991), 2.
35. Roberts Richards. Itigants and Household African Disputes and Colonial Courts (London:Heinemann, 2005), 84.
36. Roberts Richards. Itigants and Household African Disputes and Colonial Courts (London:Heinemann, 2005), 85.
37. Roberts Richards. Itigants and Household African Disputes and Colonial Courts (London:Heinemann, 2005), 86.
38. Roberts Richards. Itigants and Household African Disputes and Colonial Courts (London:Heinemann, 2005), 85.
39. Roberts Richards. Itigants and Household African Disputes and Colonial Courts (London:Heinemann, 2005), 86.
40. Roberts Richards. Itigants and Household African Disputes and Colonial Courts (London:Heinemann, 2005), 87.
41. Roberts Richards. Itigants and Household African Disputes and Colonial Courts (London:Heinemann, 2005), 90.
42. Roberts Richards. Itigants and Household African Disputes and Colonial Courts (London:Heinemann, 2005), 85.
43. Roberts Richards. Itigants and Household African Disputes and Colonial Courts (London:Heinemann, 2005), 91.
44. Roberts Richards. Itigants and Household African Disputes and Colonial Courts (London:Heinemann, 2005), 92.