'Changing traditions to meet current altering conditions': Customary law, African courts and the rejection of codification in Kenya, 1930-60

Journal of African History

Volumn 40, Issue 3, 1999, Pages 411-431

  Shadle, Brett L ^a  

^a NONE

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EID: 0009817609     PISSN: 00218537     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0021853799007513     Document Type: Article

References (97)

1. Lord Lugard, The Dual Mandate in British Tropical Africa (London, 1965 [1922]), 547-8, 549-50.
2. See Karen Fields, Revival and Rebellion in Colonial Central Africa (Portsmouth, NH, 1997), chs. 1-2.
3. This may well have been true for other periods as well, though documentation is slim. In 1923, the Chief Native Commissioner (CNC) defended the Native Tribunals from an attack by the Chief Justice of the Supreme Court. 'I am opposed', the CNC wrote, 'to anything in the nature of codification of native law for many years to come, it is the boast of our own system that it is elastic...' CNC to Acting Colonial Secretary, 27 July 1923, Kenya National Archives (KNA) (Nairobi): Jud 1/1104. Most of the KNA files used in this paper are those dealing directly with African court matters, and in particular papers and correspondence from the office of the Judicial Advisor (JA, later known as Native Courts Officer [NCO] and African Courts Officer [ACO]). These files provide a rich source of information for administrative ideas about African law and society and how these ideas informed policies for African courts.
4. It is my impression that this stance was also common in the Colonial Office, if not elsewhere. The Africa Studies Branch of the Colonial Office assessed the Belgian method of collecting customary law, whereby officers on occasion prepared articles and significant cases were transcribed. The CO thought this long-term method much preferable to a study completed in one or two years: 'The custom reduced to writing in [the latter] way is inevitably the custom at one point in its growth. Yet it is difficult to judge with certainty whether customary law is ripe for reduction to writing at any one stage of its evolution'. Administrators also then ran the risk of arbitrarily favoring 'old' or 'new' custom. This file is not dated, but appears to be from 1948. (KNA: RR 8/1 [Recording Native Law]; a later version of this paper appeared as 'Methods of recording native customary law', Journal of African Administration, 1[1949], 130-6). Similarly, in 1951, the CO sent out a circular proposing the collection of cases and decisions made in district officers' (DOs') courts 'illustrative of the content of native law in Africa as it exists at the present day'. The circular emphasized that decisions so collected would not be regarded as 'a body of binding precedent', but rather as a set of information about the law. One of the reasons given for this, and the only reason near which the Kenya reader scribbled a check mark, was that 'custom is changing very rapidly in Africa at present time and anything leading to crystallization of custom in its present form is undesirable'. Circular Despatch of 25 Sept. 1951, KNA: ARC (MAA) 2/10/21.
5. Frederick Cooper, From Slaves to Squatters (New Haven, 1980), 111-21.
6. Provincial African Courts Officer (PACO) Central, to District Commissioners (DCs) Central, 2 July 1957, KNA: RR/8/8.
7. Terence Ranger, 'The invention of tradition in colonial Africa', in Eric Hobsbawm and Terence Ranger (eds.), The Invention of Tradition (Cambridge, 1983), 211-62. The use of the term codification has been rather loose. Ranger never makes explicit what he means by codification, but he appears to include a range of acts including writing down court decisions and the colonial collection of customary law. Chanock reserves the term for the inclusion of customary law into a legal code, which then takes its place next to statutory law (Martin Chanock, Law, Custom and Social Order [Cambridge, 1985]). A clarification of Chanock's argument is here in order, having apparently been misinter-preted by other scholars. Chanock shows quite clearly that early colonial officials sifted through various, often contradictory, statements on customary law to pick out (what they understood to be) the fundamental rules involved. These rules - now rigid and unbending, very much unlike fluid and shifting pre-colonial customary law - could then be strictly applied by Europeans in future cases. Many of these 'customary laws' were tucked away in colonial files or published in anthropological journals. This, however, was not codification. Only from sometime in the 1930s and 1940s, Chanock argues, were administrators ready to accept the need for codification of customary law - of writing a single version of customary laws into a legal code. Roberts and Mann, who at other points in their essay follow Chanock's basic periodization, lump colonial treatment of customary law into one general argument: 'The invention and eventual codification of custom solidified fluid cultural and legal ideas and relationships into reproducible rules' (Richard Roberts and Kristin Mann, 'Law in colonial Africa', in Kristin Mann and Richard Roberts [eds.], Law in Colonial Africa [Portsmouth, NH, 1991], 4). In these terms, the following discussion of colonial rejection of codification responds to Chanock's strict definition of codification; the discussion of how customary law was used in courts responds to the broader interpretation of codification as a code and/or as the collection and writing down of customary law.
8. Terence Ranger, 'The invention of tradition in colonial Africa', in Eric Hobsbawm and Terence Ranger (eds.), The Invention of Tradition (Cambridge, 1983), 211-62. The use of the term codification has been rather loose. Ranger never makes explicit what he means by codification, but he appears to include a range of acts including writing down court decisions and the colonial collection of customary law. Chanock reserves the term for the inclusion of customary law into a legal code, which then takes its place next to statutory law (Martin Chanock, Law, Custom and Social Order [Cambridge, 1985]). A clarification of Chanock's argument is here in order, having apparently been misinter-preted by other scholars. Chanock shows quite clearly that early colonial officials sifted through various, often contradictory, statements on customary law to pick out (what they understood to be) the fundamental rules involved. These rules - now rigid and unbending, very much unlike fluid and shifting pre-colonial customary law - could then be strictly applied by Europeans in future cases. Many of these 'customary laws' were tucked away in colonial files or published in anthropological journals. This, however, was not codification. Only from sometime in the 1930s and 1940s, Chanock argues, were administrators ready to accept the need for codification of customary law - of writing a single version of customary laws into a legal code. Roberts and Mann, who at other points in their essay follow Chanock's basic periodization, lump colonial treatment of customary law into one general argument: 'The invention and eventual codification of custom solidified fluid cultural and legal ideas and relationships into reproducible rules' (Richard Roberts and Kristin Mann, 'Law in colonial Africa', in Kristin Mann and Richard Roberts [eds.], Law in Colonial Africa [Portsmouth, NH, 1991], 4). In these terms, the following discussion of colonial rejection of codification responds to Chanock's strict definition of codification; the discussion of how customary law was used in courts responds to the broader interpretation of codification as a code and/or as the collection and writing down of customary law.
9. Terence Ranger, 'The invention of tradition in colonial Africa', in Eric Hobsbawm and Terence Ranger (eds.), The Invention of Tradition (Cambridge, 1983), 211-62. The use of the term codification has been rather loose. Ranger never makes explicit what he means by codification, but he appears to include a range of acts including writing down court decisions and the colonial collection of customary law. Chanock reserves the term for the inclusion of customary law into a legal code, which then takes its place next to statutory law (Martin Chanock, Law, Custom and Social Order [Cambridge, 1985]). A clarification of Chanock's argument is here in order, having apparently been misinter-preted by other scholars. Chanock shows quite clearly that early colonial officials sifted through various, often contradictory, statements on customary law to pick out (what they understood to be) the fundamental rules involved. These rules - now rigid and unbending, very much unlike fluid and shifting pre-colonial customary law - could then be strictly applied by Europeans in future cases. Many of these 'customary laws' were tucked away in colonial files or published in anthropological journals. This, however, was not codification. Only from sometime in the 1930s and 1940s, Chanock argues, were administrators ready to accept the need for codification of customary law - of writing a single version of customary laws into a legal code. Roberts and Mann, who at other points in their essay follow Chanock's basic periodization, lump colonial treatment of customary law into one general argument: 'The invention and eventual codification of custom solidified fluid cultural and legal ideas and relationships into reproducible rules' (Richard Roberts and Kristin Mann, 'Law in colonial Africa', in Kristin Mann and Richard Roberts [eds.], Law in Colonial Africa [Portsmouth, NH, 1991], 4). In these terms, the following discussion of colonial rejection of codification responds to Chanock's strict definition of codification; the discussion of how customary law was used in courts responds to the broader interpretation of codification as a code and/or as the collection and writing down of customary law.
10. Roberts and Mann, 'Law in colonial Africa', 4.
11. Martin Chanock, 'Making customary law: men, women and courts in colonial Northern Rhodesia', in Margaret Jean Hay and Marcia Wright (eds.), African Women and the Law (Boston University Papers on Africa, 7, 1982), 53-67; Chanock, Law, Custom; Elizabeth Schmidt, Peasants, Traders and Wives (Portsmouth, NH, 1992).
12. Martin Chanock, 'Making customary law: men, women and courts in colonial Northern Rhodesia', in Margaret Jean Hay and Marcia Wright (eds.), African Women and the Law (Boston University Papers on Africa, 7, 1982), 53-67; Chanock, Law, Custom; Elizabeth Schmidt, Peasants, Traders and Wives (Portsmouth, NH, 1992).
13. Martin Chanock, 'Making customary law: men, women and courts in colonial Northern Rhodesia', in Margaret Jean Hay and Marcia Wright (eds.), African Women and the Law (Boston University Papers on Africa, 7, 1982), 53-67; Chanock, Law, Custom; Elizabeth Schmidt, Peasants, Traders and Wives (Portsmouth, NH, 1992).
14. David Anderson, 'Stock theft and moral economy in colonial Kenya', Africa, 56 (1986), 399-415; David Anderson, 'Policing the settler state: colonial hegemony in Kenya, 1900-1952', in Dagmar Engels and Shula Marks (eds.), Contesting Colonial Hegemony : State and Society in Africa and India (London, 1994), 248-64; Justin Willis, 'Thieves, drunkards and vagrants: defining crime in colonial Mombasa, 1902-32', in David M. Anderson and David Killingray (eds.), Policing the Empire: Government, Authority and Control, 1830-1940 (Manchester, 1991), 219-35.
15. David Anderson, 'Stock theft and moral economy in colonial Kenya', Africa, 56 (1986), 399-415; David Anderson, 'Policing the settler state: colonial hegemony in Kenya, 1900-1952', in Dagmar Engels and Shula Marks (eds.), Contesting Colonial Hegemony : State and Society in Africa and India (London, 1994), 248-64; Justin Willis, 'Thieves, drunkards and vagrants: defining crime in colonial Mombasa, 1902-32', in David M. Anderson and David Killingray (eds.), Policing the Empire: Government, Authority and Control, 1830-1940 (Manchester, 1991), 219-35.
16. David Anderson, 'Stock theft and moral economy in colonial Kenya', Africa, 56 (1986), 399-415; David Anderson, 'Policing the settler state: colonial hegemony in Kenya, 1900-1952', in Dagmar Engels and Shula Marks (eds.), Contesting Colonial Hegemony : State and Society in Africa and India (London, 1994), 248-64; Justin Willis, 'Thieves, drunkards and vagrants: defining crime in colonial Mombasa, 1902-32', in David M. Anderson and David Killingray (eds.), Policing the Empire: Government, Authority and Control, 1830-1940 (Manchester, 1991), 219-35.
17. In Kenya, these were known first as native tribunals, later native courts, and finally African courts.
18. These statistics come from the eight busiest districts in terms of tribunal cases heard in 1942: North, Central and South Kavirondo; Nyeri; Fort Hall; Kiambu; Embu; and Meru. Very few cases came directly to a DO, and these were statutory (not customary law) matters: murder, for example, or non-bridewealth disputes arising out of Christian marriages. See Arthur Phillips, Report on Native Tribunals (Nairobi: Government Printer, Colony and Protectorate of Kenya, 1945), 5-6 on the powers of Native Tribunals, and 21, 24, 30, 43, 58, 61, 81, 98, and 106 for the number of cases heard by the various courts.
19. This argument is similar to those of Sally Falk Moore in Social Facts and Fabrications (Cambridge, 1986) and of Sara Berry in No Condition is Permanent (Madison, 1993).
20. This argument is similar to those of Sally Falk Moore in Social Facts and Fabrications (Cambridge, 1986) and of Sara Berry in No Condition is Permanent (Madison, 1993).
21. Colonial officers in Fiji held similar ideas about Fijian customary law, though not for Indian workers living there. See John D. Kelly, 'Fear of culture: British regulation of Indian marriage in post-indenture Fiji', Ethnohistory 36 (1989), 372-91. In India, the British did codify 'ancient' local law in the nineteenth century, but were torn as to how this might adversely affect continuing change of that law. See Neeladri Bhattacharya, 'Remaking custom: the discourse and practice of colonial codification', in R. Champakalakshmi and S. Gopal (eds.), Tradition, Dissent and Ideology (Delhi, 1996), 20-51.
22. Colonial officers in Fiji held similar ideas about Fijian customary law, though not for Indian workers living there. See John D. Kelly, 'Fear of culture: British regulation of Indian marriage in post-indenture Fiji', Ethnohistory 36 (1989), 372-91. In India, the British did codify 'ancient' local law in the nineteenth century, but were torn as to how this might adversely affect continuing change of that law. See Neeladri Bhattacharya, 'Remaking custom: the discourse and practice of colonial codification', in R. Champakalakshmi and S. Gopal (eds.), Tradition, Dissent and Ideology (Delhi, 1996), 20-51.
23. Schmidt, Peasants, 106-10.
24. W. M. Hale to Provincial Commissioner (PC) Rift Valley (RV), 3 July 1947, KNA: RR/8/1.
25. 'Law in colonial Africa', 13.
26. 'Memorandum regarding the development of native tribunals', c. Aug. 1929, in Rhodes House MSS Afr. s 1792, box 37 (Matson Papers), File 5/1, Rhodes House Library, Oxford University.
27. W. S. Marchant to Bulkley, 21 Feb. 1946, KNA: MAA 7/725.
28. CNC in LegCo, 21 Feb. 1951, KNA: RR 1/4.
29. Wainwright to Allot, 12 May 1960, KNA: RR 8/8.
30. See also, for example, a minute from a PCs' meeting in which legislative interference with bridewealth was rejected. Not only hard to enforce, legislation 'would write bride price firmly into the law, crystallising the custom and making it difficult if not impossible for it to die out'. PCs' meeting of 5 Apr. 1938, quoted in CNC's memorandum, 'Bride price', 29 Oct. 1941, KNA: MDS 2/3/3.
31. Coutts, DO, quoted in extract from minutes of DCs meeting, Officer i/c Northern Frontier District to Chief Secretary, 24 Dec. 1942, KNA: MAA 7/395.
32. See also Fazan, 'Memorandum', 18.
33. These opinions were shared by many white settlers, administrators' erstwhile enemies. See Brett L. Shadle, 'Traitors to their own community: divisions among whites in the Kenya black peril, 1926', unpublished paper, Oct. 1996; KNA: Jud 1/1465 (Administration of the Law).
34. For details on these changes, see KNA: RR 1/4 (Proposed Amendments to the NTO 1930: New African Courts Bill) and RR 1/6 (African Courts: Policy and Organization). On some earlier debates in 1923-24, see KNA: Jud 1/1104 (Native Tribunals). A brief history of Native Tribunals is given in Phillips, Report, 5-12. For struggles between the judiciary and the administration, see H. F. Morris and James S. Read, Indirect Rule and the Search for Justice (Oxford, 1972), ch. 3. These authors argue that in the post-war years changes in the nature of colonial rule brought about DOs' acquiescence to greater judicial control over local Resident Magistrates. While this may be true, DOs continued to claim sole authority over African courts, where most intra-African disputes were heard. Desmond O'Hagan, a former colonial official in Kenya who served as Native Courts Officer, recalled that '[m]ost Administrative Officers were of opinion that African courts were more likely to deliver justice than young magistrates untrained in native law and custom'. Personal communication, 16 Feb. 1998. 27 African courts handled customary law disputes, involving matters such as bride-wealth, adultery, elopement and land. They also heard select offenses under the Penal Code (for example, assault and, from 1950, indecent assault) and African District Council bye-laws (such as controlling beer-parties or keeping paths clear). Disputes involving whites or Asians, and the more serious Penal Code infractions (rape, murder) were heard by magistrates and could be appealed up to the Supreme Court. Muslims could take disputes to the local Islamic court.
35. Morris and Read, Indirect Rule, 98-103; Y. P. Ghai and J. P. W. B. McAuslan, Public Law and Political Change in Kenya (London, 1970), 144-7.
36. Morris and Read, Indirect Rule, 98-103; Y. P. Ghai and J. P. W. B. McAuslan, Public Law and Political Change in Kenya (London, 1970), 144-7.
37. Simmance to PC Central, 23 Sept. 1958, KNA: RR 1/6. Similarly, the PC of Central Province felt 'strongly that the African Courts are still an integral part of the Administration, and should be kept firmly under our wing'. PC Central to ACO, 1 Sept. 1954, KNA: RR 1/6.
38. Minute 2/54 of DCs Meeting, enclosed in PC Central to ACO, 15 Mar. 1954, KNA: RR 1/6. Pencilled in the margin of this document, apparently by then ACO M. N. Evans, was a contrary opinion. 'I am in "fundamental" disagreement. This is a parochial and short-sighted view, which runs counter to well-established principles - The Rule of Law in fact. The Executive cannot forever run its own private system of courts, entirely independent of the Supreme Court - particularly where criminal law is concerned'. This comment exposes some of the divergences within administrative opinion, but on the whole these disagreements were less significant than those between administrators and the judiciary.
39. See KNA: ARC (MAA) 2/10/21 (Native Tribunals: General, 1941-52).
40. See Bruce Berman, Control and Crisis in Colonial Kenya (London, 1990), 88-9. Morris and Read describe this as the 'intimate knowledge which the administrative officer believed he possessed, both of the customary law and of the outlook and social conditions of the African population'. Indirect Rule, 78.
41. See Bruce Berman, Control and Crisis in Colonial Kenya (London, 1990), 88-9. Morris and Read describe this as the 'intimate knowledge which the administrative officer believed he possessed, both of the customary law and of the outlook and social conditions of the African population'. Indirect Rule, 78.
42. As a former colonial official (who worked in the provincial administration and later was involved in overseeing African court work) put it, 'I envisioned that African Courts of some kind or other would be required as long as the prime duty of the courts was to administer the customary law of the area concerned, which a trained legal expert could not be expected to do to the satisfaction of the local population' (personal communication, E. [anonymity requested], 23 Jan. 1998).
43. Question from the LegCo to Secretary for African Affairs, 19 Mar. 1959; ACO A. Galton-Fenzi to Permanent Secretary for African Affairs, 12 Mar. 1959; Minister for African Affairs, reply to oral question in LegCo, 15 Apr. 1959; all in KNA: RR 1/6. Similarly, in 1951, a proposal was made in the Legislative Council to introduce advocates into courts at the DOs' appeal level and above. In his response in the LegCo, the Acting Solicitor General concurred as to the ability of advocates to master many codes of written law. However, 'the intricacies of African law are locked away in the deep recesses of the minds of the African Elders who administer that law'. How advocates could appreciate unwritten customary law, he remarked, 'it is difficult to see'. LegCo, 24 Oct. 1951, in KNA: RR/1/4.
44. The members of the Judiciary did not, of course, take all this quietly. Pickering, Judge of the High Court in 1919, agreed that law and society evolved together. 'Economic and social standards' related directly to the law, so that if 'the laws are stationary, progress in other matters of life is most difficult'. Thus this maintenance of 'superstitious and nebulous' customary law, the contents of which 'no one ever can know', meant preserving African life in a backward stage. By extending British courts and British justice, modern law could push the evolution of Africa. J. H. Pickering, 3 Oct. 1919, KNA: Jud 1/975. Chief Justice Barth, commenting on a newly proposed line of appeals ending with the Governor and avoiding the Supreme court, rejected arguments that judges were unfamiliar with customary law : this argument 'applies with equal force to a Governor who may never have served in Africa or in any other Colony'. J. W. Barth to Attorney General, 22 Feb. 1930, KNA: Jud 1/1096.
45. Like administrators and their African courts, settlers called for informal African tribunals on white farms, which they hoped would fall under settler influence. Some extra-legal bodies were in fact established, but administrators fought fiercely against this expansion of settler authority over Africans. On settler tribunals, see Tabitha Kanogo, Squatters and the Roots of Mau Mau (London, 1987), 75; and on debates in the administration over extending recognition to them, see KNA files ARC (MAA) 2/10/21; Jud 1/975 (Native Tribunals, 1916); Jud 1/1104.
46. Oliver Knowles, personal communication, 26 Jan. 1997.
47. 'Memorandum', 6-7.
48. Ibid. 9-11.
49. On the origins of the Natal Code, see Thomas McClendon, 'Tradition and domestic struggle in the courtroom: customary law and the control of women in segregation-era Natal', International Journal of African Historical Studies 28 (1995), 527-61.
50. These were the Cape Laws and Customs Commission of 1893, and the South African Native Commission of 1905.
51. 'Memorandum', 11.
52. W. S. Marchant to Bulkley, 21 Feb. 1946, KNA: MAA 7/725. As early as 1923, one settler turned administrator argued that something like the Natal Code was needed in Kenya, but his idea apparently found little resonance within administrative circles. Assistant DC to DC Kyambu, 14 May 1923, KNA: Jud 1/1104.
53. Lambert to Marchant, 23 Mar. 1946, KNA: MAA 7/725.
54. Draft notes by Lambert, n.d., KNA: MAA 7/725.
55. In A. A. M. Lawrence, DC South Kavirondo (SK), to Acting PC Nyanza, 21 May 1947, KNA: MAA 7/725.
56. PC Nyanza to CS, 14 July 1947, KNA: MAA 7/725.
57. F. A. Loyd to PC RV, 18 June 1947; W. M. Hale to PC RV, 3 July 1947; G. E. Noad to PC RV, 8 July 1947; PC Central to CS, 15 Mar. 1948, all in KNA: RR/8/1.
58. Phillips, Report, 1.
59. Ibid, 1; Arthur Phillips to CS, 26 Mar. 1945, KNA: ARC (MAA) 2/10/21; Minute 38/45, PCs meeting, 10-14 Apr. 1945; Acting PC RV to CS, 14 Aug. 1945, all in KNA: MAA 7/725.
60. London, 1945.
61. Phillips to CNC, 20 July 1946, KNA: MAA 7/725. The worth of Cory and Hartnoll's study was reaffirmed by the African Studies Branch of the Colonial Office, in 'Methods of recording', 130-6.
62. 'Introduction', n.p.
63. See, for example, 35-6, 46, 54, 65, 67, 73, 80, and 111.
64. For membership of the Luo and Kisii sections of the South Nyanza Law Panel (SNLP), see KNA: RR 8/10 (Native Law: Law Panels, South Nyanza). Membership of the later ethnic law panels is listed in Appendix B of Eugene Cotran, Restatement of African Law: Kenya: Volume 1, Marriage and Divorce (London, 1968).
65. Minute 1/50, SNLP, 27 Sept. 1950, KNA: DP/18/13.
66. See NCO to T. Watts, Provincial Native Courts Officer (PNCO) Nyanza, 22 Sept. 1949, KNA: RR 1/4; NCO to DC Kitui, 12 Apr. 1948, KNA: RR 8/1. In 1951, a DO named Andere wrote to Audrey Richards to request 'any suggestions as to what [he] should do' in his role as the North Nyanza Law Panel Secretary. A shocked Richards immediately wrote to the ACO, expressing her disbelief that a main without any training had been put to 'such a very tricky business'. The ACO responded by informing her that there was 'no intention of attempting to codify customary law or to bind the African courts by the findings of the Law Panels'. So even if through his inexperience Andere made mistakes, 'no great harm will be done'. Andere to Richards, 13 Jan. 1951; Richards to Cowley, 7 Feb. 1951; Cowley to Richards, 9 Mar. 1951, all in KNA: RR 8/1. At one point in 1955, the DO in charge of courts proposed that the minutes of the SNLP be published as a booklet and distributed to the African courts: 'the courts would then apply the customary law as laid down in the book,' and any deviations would have to be justified in detail. None of the archives consulted, however, contain any trace of even first steps toward such codification. Minutes of the SNLP (Kisii Section), 5-6 Dec. 1956, KNA: RR 8/10.
67. See PACO Central to DCs Central, 2 July 1957; DC Kiambu to PC Central, 28 Aug. 1957; ACO to PC Central, 30 Oct. 1957, all in KNA: RR 8/8.
68. Eugene Cotran, 'The recording of customary law in Kenya', 3 Jan. 1962, KNA: RR 8/8.
69. DC South Nyanza to ACO, 18 Oct. 1952, KNA: MAA 10/43. Minutes of the panel can be found in KNA: RR 8/10, and in file MAA/KIS/LAW/1, in the Archives of the Cardinal Otunga History Society (COHS), Cardinal Otunga Secondary School, Mosocho, Kenya, which I used with the kind permission of Brother Anthony Koenig.
70. Minutes of the SNLP, 1954, KNA: RR 8/10.
71. Oliver Knowles, 'Some modern adaptations of customary law in the settlement of matrimonial disputes in the Luo, Kisii and Kuria tribes of South Nyanza', Journal of African Administration, 8 (1956), 11-15.
72. At a meeting of the Kisii Section in November 1955, meant to focus on divorce law, the new courts officer stated that during his recent inspection 'he had received different views on the points which were to be discussed'. Two points here are noteworthy. First, the decisions made by the law panel in 1954 had not created any binding customary law enforced unquestioningly by court elders. Second, this new courts officer either had not seen or had disregarded the old minutes on the customary law of divorce, showing the disjointedness and disorganization of the collection of customary law. Minutes of the Law Panel (Kisii Section) 28-29 Nov. 1955, KNA: RR 8/10.
73. As part of the Restatement of African Law project.
74. Special Law Panel Meetings to Record Customary Criminal Offenses in Kisii District, Aug. 16 1961, COHS: MAA/KIS/LAW/1/13.
75. I have examined 685 adultery cases heard in the Gusii African courts Ritongo Gesima and Ritongo Kuja between the early 1950s and mid 1960s. The transcripts are in Swahili or, from about 1964, English. The Ritongo Gesima files are now housed in the courthouse in Keroka, those from Ritongo Kuja are at the district headquarters in Ogembo. My thanks to the Resident Magistrate, Kisii, for permission to use these files.
76. Ritongo Kuja criminal case 673/59.
77. Ritongo Kuja criminal case 69/63.
78. Ritongo Kuja criminal case 927/59.
79. Interviews carried out for me by Ben Omwega with two former Gusii court elders bear out this point. Interviews with Paul Nyangoto Ogeturenga, 24 Oct. 1997, and Nyasani Omanua, 22 Oct. 1997.
80. Minutes of Kisii (or Gusii) Law Panel, 10-11 Dec. 1962, COHS: MAA/KIS/ LAW/1/13.
81. The observations of Philip Mayer and Iona Mayer regarding the creation of land law in Gusii are revealing. Resident in the area in the late 1940s, the Mayers read hundreds of court files, sat in on the debates of local semi-formal councils of elders (known as etureti) and interviewed court elders and ordinary people. The Gusii, they argued, had had no real land law pre-colonially: land was too plentiful to necessitate such details. As land became more scarce from the 1920s, however, a land law began to emerge: At times local etureti elders tried to reconcile the disputes without the guidance of legal rules; at other times they applied rules proper to a more familiar type of quarrel, that is, over bridewealth rights. Cases already digested by etureti elders on these lines proceeded to the two native tribunals, where again they were heard by Gusii elders pledged to apply native law and custom. Here they were given further consistency, and the common law began to crystalize, with bridewealth-law features more or less firmly embedded in it. Some cases went further on appeal and reached British magistrates who, reluctant to interfere with native law and custom, made no deliberate alterations of principle. Far from seeking out and implementing 'rules', administrators were content to allow local Gusii elders and tribunal members to create a new set of customary laws, drawing in large part on the 'customary law' of bridewealth. See Mayer and Mayer, 'Land law in the making', in Hilda Kuper and Leo Kuper (eds.), African Law: Adaptation and Development (Berkeley, 1965), 51-78.
82. The remarks of the Attorney General, and later the African Courts Officer, show that officers in Nairobi spent more time examining at least some court returns. For a similar argument on the lack of regular review and supervision of African courts by colonial administrators, see Moore, Social Facts, 149-51, 171.
83. Law, Custom, 53.
84. This was not a point necessarily shared by all administrators. The CNC's 1951 opinion that customary law was 'locked away in the deep recesses of the minds of the African Elders' certainly expresses a different opinion. Yet it is also significant that the CNC was addressing the Legislative Council when trying to ward off the introduction of English legal traditions into African courts. In such a situation it would certainly have been dangerous to admit just how fluid customary law could be.
85. DC SK to PC Nyanza, 2 July 1936, KNA: MDS 2/3/3.
86. See PACO Central to DCs Central, 2 July 1957; DC Kiambu to PC Central, 28 Aug. 1957; ACO to PC Central, 30 Oct. 1957, all in KNA: RR 8/8.
87. Knowles, 'Some modern adaptations', 14-15. Administrators often noted that African District Councils (composed of chiefs, young progressives and other local notables) could recommend changes in customary law, but had no power whatsoever to actually alter it. Here too the ADCs would enunciate public opinion, but court elders and administrators remained in control of the actual customary law used. See correspondence between PC Coast, PC Nyanza and ACO in 1949 and between the CNC and PC Central in 1952, all in KNA: RR 8/1.
88. Desmond O'Hagan to DC SK, 12 Apr. 1949, and 4 Mar. 1949, in KNA: MAA 10/43.
89. DC SK to NCO, 4 May 1949, KNA: MAA 10/43.
90. See correspondence in KNA: PC/NZA 3/15/88 (African Courts: Adultery Cases).
91. PC Coast to NCO, 30 Aug. 1949, KNA: MAA 6/21.
92. In 1932 Clarence Buxton, DC SK, spent some time considering how and where public opinion was formed. 'The Kisii Township market is often attended by as many as 5,000 people and amounts to a social gathering where news can be exchanged. It is perhaps at these gatherings that the real public opinion is formed...' (SK District Annual Report, 1932, KNA: KSI/3). That these markets were attended by men and women, young and old, suggests that he may have thought all segments of society contributed to create public opinion.
93. Here I disagree with Mahmood Mamdani, who argues that colonial officials presumed the existence of a single, indisputable customary law for each tribe, so that those with interpretations different from those of the Native Authorities did not even have the opportunity to make their ideas known. Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, 1996), 118.
94. For an example of this, see Michael Saltman, The Kipsigis: A Case Study in Changing Customary Law (Cambridge, MA, 1977), 63-4.
95. No Condition, ch. 2.
96. See Brett L. Shadle, 'I will marry whom I want: marriage, adultery and elopement in colonial Gusiiland, Kenya', paper presented to American Historical Association annual conference, Jan. 1998; Kenda Mutongi, '"Worries of the heart": widowed mothers, daughters and masculinities in Maragoli, Western Kenya, 1940-60', Journal of African History, 40 (1999), 67-86.
97. See Brett L. Shadle, 'I will marry whom I want: marriage, adultery and elopement in colonial Gusiiland, Kenya', paper presented to American Historical Association annual conference, Jan. 1998; Kenda Mutongi, '"Worries of the heart": widowed mothers, daughters and masculinities in Maragoli, Western Kenya, 1940-60', Journal of African History, 40 (1999), 67-86.