‘It Shall be the Duty of Every African to Obey and Comply Promptly’: Negotiating State Authority in the Legal Arena, Rhodesia 1965–1980

Abstract

The legal arena was an important site of struggle in colonial Africa. On the one hand it was used by the state to broadcast and assert its power. On the other, Africans employed it in their efforts to resist the state's intrusions in their lives. This article uses a number of legal disputes between Africans and the Rhodesian state to explore how state authority was negotiated in the legal arena in Rhodesia during the 1960s and 1970s. These legal encounters are read as moments of dialogue between Africans and the state about the exercise of state authority and the place of Africans within the Rhodesian polity. I argue that a combination of legal consciousness, tenacity and access to the necessary knowledge, as well as the problematic role of law as an element of statecraft in Rhodesia, enabled Africans to contest attempts by state officials to construct personalised forms of authority and assert alternative notions of citizenship.

Notes

¹ See F. Cooper and A.L. Stoler, ‘Between Metropole and Colony: Rethinking a Research Agenda’, in F. Cooper and A.L. Stoler (eds), Tensions of Empire: Colonial Culture in a Bourgeois World (Berkeley, CA, University of California Press, 1997) and C. Crais (ed.), The Culture of Power in Southern Africa: Essays on State Formation and the Political Imagination (Portsmouth, NC, Heinemann, 2003).

^* The research for this article was facilitated by funding provided by the Oxford University African Studies Centre to which I am very grateful. I also owe a debt of gratitude to Professor T. O. Ranger, Professor J. Alexander, the JSAS readers and members of the University of Zimbabwe Economic History Department for their insightful comments on earlier drafts.

² C. Crais, ‘Introduction’, in Crais (ed.), The Culture of Power, p. 21.

³ ‘Law’ is used here in its broader sense and refers to actual legislation as well as the institutions that interpreted and enforced it.

⁴ J.L. Comaroff, ‘Colonialism, Culture and the Law: A Foreword’, Law and Social Enquiry, 26, 2 (2001), p. 307.

⁵ S. Berry, ‘Hegemony on a Shoestring: Indirect Rule and Access to Agricultural Land’, Africa, 62, 3 (1992), p. 333.

⁸ J. Comaroff, ‘Governmentality, Materiality, Legality, Modernity: On the Colonial State in Africa’, in J. Deutsch, H. Schmidt and P. Probst (eds), African Modernities: Entangled Meanings in Current Debate (Oxford, James Currey, 2002), pp. 112–13.

⁶ K. Mann and R. Roberts, ‘Introduction’ in K. Mann and R. Roberts (eds), Law in Colonial Africa (London, James Currey, 1991).

⁷ J. Deutsch, ‘Celebrating Power in Everyday Life: The Administration of Law and the Public Sphere in Colonial Tanzania, 1890–1914’, Journal of Cultural Studies, 15, 1 (2002).

⁹ See, in particular, J. Alexander's discussion of how political prisoners in the 1960s and 1970s imagined and debated citizenship, as well as invoked the law in defence of their own notions of citizenship, in ‘The Political Imaginaries and Social Lives of Political Prisoners in Post 2000 Zimbabwe’, Journal of Southern African Studies [hereafter JSAS], 36, 2 (2010) and ‘Political Prisoner's Memoirs in Zimbabwe Narratives of Self and Nation’, Cultural and Social History, JSAS, 5, 4 (2008).

¹¹ E.P. Thompson, Whigs and Hunters: The Origins of the Black Act (New York, Pantheon Books, 1975), p. 263.

¹⁰ E.H. Cole, ‘“An Unqualified Human Good”: E. P. Thompson and the Rule of Law’, Journal of Law and Society, 28, 2 (2002).

¹² D.W. Cohen, L. White and S.F. Meischer, ‘Introduction: Voices, Words and African History’, in L. White, S.F. Meischer and D.W. Cohen, African Words, African Voices: Critical Practices in Oral History (Indianapolis, IN, Indiana University Press, 2001), p. 5.

¹³ A number of such legal encounters between the state and Africans can be found in National Archives of Zimbabwe (hereafter NAZ), file S3700/43, TTL Authorities: Disputes 1973 May – April 1976. For an earlier set of cases see S3542/2 Appeal Cases Sipolilo Case Nos 81/58 – 111/58: 1958 which has 30 successful appeals in the Salisbury High Court made by Africans residing in Sipolilo against conviction for refusing to accept grazing permits issued under the Native Land Husbandry Act.

¹⁴ T. McClendon, Genders and Generations Apart: Labour Tenants and Customary Law in the Segregation Era- South Africa 1920s–1940s (Oxford, James Currey, 2002), p. 31.

¹⁵ P. Godwin and I. Hancock, ‘Rhodesians Never Die’: The Impact of War and Political Change on White Rhodesia c. 1970–1980 (Oxford, Oxford University Press, 1993), pp. 56–7.

¹⁶ J. Alexander, Unsettled Land: State-making and the Politics of Land in Zimbabwe 1893–2003 (Harare, Weaver Press & Oxford, James Currey, 2006), p. 64.

¹⁷ For a discussion of rural politics and the ideas that animated it see J. Alexander, J. McGregor and T. Ranger, Violence and Memory: A Hundred Years in the “Dark Forests” of Matabeleland (Oxford, James Currey, 2000).

¹⁸ See, for example, the ‘Southern Rhodesia African National Congress: Statement of Principles. Policy and Programme’, in C. Nyangoni and G. Nyandoro (eds), Zimbabwe Independence Movements: Select Documents (London, Rex Collings, 1979) and N. Sithole, African Nationalism (London, Oxford University Press, 1968).

¹⁹ Alexander, Unsettled Land, p. 63.

²⁰ G. Feltoe, ‘Law, Ideology and Coercion in Southern Rhodesia’ (M.Phil. Thesis, University of Kent, 1978), p. 50.

²¹ ‘Ian Smith's Hostages: Political Prisoners in Rhodesia’, International Defence and Aid Fund Fact Paper on Southern Africa, Special Issue – October 1976. See also M. Munochiveyi, ‘“It was Difficult in Zimbabwe” A History of Imprisonment, Detention and Confinement during Zimbabwe's Liberation Struggle, 1960–1980’ (D.Phil. Thesis, University of Minnesota, 2008).

²² Feltoe, ‘Law, Ideology and Coercion’, p. 60.

²³ Feltoe, ‘Law, Ideology and Coercion’, p. 60

²⁴ T. Ranger, ‘Tradition and Travesty: Chiefs and the Administration in Makoni District, Zimbabwe, 1960–1980’, Africa, 52, 3 (1982), p. 22.

²⁵ Alexander, Unsettled Land, p. 72.

²⁶ Tribal Trust Land Act, Act No. 9, Statue Law of Rhodesia 1967 (Salisbury, Government Printers, 1968), p. 342.

²⁷ African Law and Tribal Courts Act, Act No. 24, Statue Law of Rhodesia 1969 (Salisbury, Government Printers, 1970), p. 188.

²⁸ Rhodesia Parliamentary Debates, Vol. 73, 1969, col. 631.

²⁹ Alexander, Unsettled Land, p. 63.

³⁰ Comaroff, ‘Governmentality, Materiality, Legality, Modernity’, p. 113.

³¹ Cited in C. Palley, ‘Law and the Unequal Society: Discriminatory Legislation in Rhodesia Under the Rhodesian Front from 1963 to 1969, Part 1’, Race and Class, 12, 1 (1970), p. 20.

³² Cited in C. Palley, ‘Law and the Unequal Society: Discriminatory Legislation in Rhodesia Under the Rhodesian Front from 1963 to 1969 Part 1’, Race and Class, 12, 1 (1970), p. 21.

³³ Rhodesia Parliamentary Debates, Vol. 73, 1969, col. 620.

³⁵ Rhodesia Parliamentary Debates, Vol. 73, 1969, col. 844.

³⁴ Rhodesia Parliamentary Debates, Vol. 64, 1966, col. 620.

³⁶ Such objections were frequently made by political prisoners as well. See Alexander, ‘Political Prisoner's Memoirs’.

³⁷ See P.S. Nyambara, ‘Immigrants, “Traditional” Leaders and the Rhodesian State: The Power of “Communal” Land Tenure and the Politics of Land Acquisition in Gokwe, Zimbabwe, 1963–1979’, JSAS, 27, 4 (2001), pp. 771–91, for an account of this dispute.

³⁸ J. Alexander and T. Ranger, ‘Competition and Integration in the Religious History of North-Western Zimbabwe’, Journal of Religion in Africa, 28, 1 (1998), p. 4.

³⁹ J. Alexander and T. Ranger, ‘Competition and Integration in the Religious History of North-Western Zimbabwe’, Journal of Religion in Africa, 28, 1 (1998), p. 5.

⁴⁰ E. Worby, ‘Maps, Names, and Ethnic Games: The Epistemology and Iconography of Colonial Power in Northwestern Zimbabwe’, JSAS, 20, 3 (1994), p. 387.

⁴¹ For more on the complex relationships between chiefs and the state see Ranger, ‘Tradition and Travesty’, J. Alexander, Unsettled Land and D. Maxwell, Christians and Chiefs: The Social History of the Hwesa People, c 1870s–1990s (Edinburgh, Edinburgh University Press, 1999).

⁴² P. Nyambara, ‘Immigrants, “Traditional” Leaders’, p. 775.

⁴³ NAZ S3700/43, Provincial Commissioner (PC) Midlands R. E. Reid to Secretary for Internal Affairs (SIA), 29/6/1972.

⁴⁴ NAZ, S3700/43, District Commissioner (DC) Gokwe J. H. Tapson to PC Midlands, 11/10/1971. ‘Unconserved land’ referred to land on which no contours had been dug in line with state policies on land conservation.

⁴⁵ NAZ, S3700/43, PC Midlands R. E. Reid to SIA, 29/6/1972.

⁴⁶ Nyambara, ‘Immigrants, “Traditional” Leaders’, p. 787.

⁴⁷ NAZ, S3700/43, DC Gokwe J.H. Tapson to PC Midlands, 9/9/1972.

⁴⁸ NAZ, S3700/43, DC Gokwe J.H. Tapson to PC Midlands, 9/6/1972.

⁴⁹ NAZ, S3700/43, Transcript of Magistrate Court proceedings, 5/4/1972.

⁵⁰ NAZ, S3700/43, DC Gokwe J.H. Tapson to PC Midlands, 9/6/1972.

⁵² NAZ, S3700/43, PC Midlands R. Reid to SIA, 29/6/1972

⁵¹ NAZ, S3700/43, PC Midlands R. Reid to SIA, 29/6/1972.

⁵³ NAZ, S3700/43, MIA Internal Correspondence, E.D.K. Maclean to Hagelthorn, 3/6/1972.

⁵⁴ NAZ, S3700/43, MIA Internal Correspondence, E. D. K. Maclean to Hagelthorn, 19/7/1972.

⁵⁵ NAZ, S3700/43, MIA Internal Correspondence, E. D. K. Maclean to Hagelthorn, 19/7/1972

⁵⁶ It is likely that Dube may have had assistance from his family in paying for the lawyers’ services.

⁵⁷ NAZ, S3700/43, Ben Baron and Partners to Government Attorney, 10/12/1973.

⁵⁸ NAZ, S3700/43, Ben Baron and Partners to Government Attorney, 10/12/1973

⁵⁹ NAZ, S3700/43, Ben Baron and Partners to Government Attorney, 10/12/1973

⁶⁰ ‘Notes on Cases: Smith N. O. and Lardner Burke N. O. vs. Wonesayi’, Rhodesian Law Journal, 12, (1972), p. 150.

⁶¹ NAZ, S3700/43, Government Attorney to SIA, 14/12/1973.

⁶² NAZ, S3700/43, Government Attorney to SIA, 14/12/1973

⁶³ NAZ, S3700/43, Government Attorney to SIA, 14/12/1973

⁶⁴ NAZ, S3700/43, PC Midlands K. C. Bloore to SIA, 21/1/1974.

⁶⁵ NAZ, S3700/43, PC Midlands K. C. Bloore to SIA, 21/1/1974

⁶⁶ NAZ, S3700/43, DC Gokwe R.J. Dawson to PC Midlands K.C. Bloore, 7/1/1974.

⁶⁷ F. Cooper and A.L. Stoler, ‘Introduction: Tensions of Empire: Colonial Control and Visions of Rule’, American Ethnologist, 16, 4 (1989), p. 610.

⁶⁸ Alexander, Unsettled Land, pp. 63–79.

⁶⁹ See B.S. Cohn, Colonialism and its Forms of Knowledge: The British in India (Princeton, Princeton University Press, 1996) and J.C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven, CT, Yale University Press, 1998).

⁷⁰ For an account of the complications that arose out of the state's attempts to dabble in the world of ‘custom’ in Chimanimani, see Alexander, Unsettled Land, pp. 93–8.

⁷¹ Berry, ‘Hegemony on a Shoestring’, p. 336.

⁷² NAZ, S2929/8/6, Report on the Mukwena Community – October 1964, B.P. Kaschula.

⁷³ NAZ, S3700/16, MIA Internal Correspondence, Letter to Mr. Connolly, 30/10/1974.

⁷⁴ For a discussion on the contested nature of tradition see T. Ranger, ‘The Invention of Tradition Revisited: The Case of Colonial Africa’, in T. Ranger and O. Vaughan (eds), Legitimacy and the State in Twentieth Century Africa (London, Macmillan Press, 1993).

⁷⁵ Interview with N. Chimuka, Machena Irrigation Scheme, Zaka, 31/3/2009.

⁷⁶ Interview with P. Dzoro, Nyangambe Resettlement Scheme, Village 3, Chiredzi, 30/3/2009.

⁷⁷ Interview with P. Dzoro, Nyangambe Resettlement Scheme, Village 3, Chiredzi, 30/3/2009 A version of the story is recorded in the Delineation Report for the Bvukuta Community. See NAZ, S2929/8/6, Report on the Bvukuta Community.

⁷⁸ Interview with C. Kunodziya, Machena Irrigation Scheme, Zaka, 31/3/2009.

⁷⁹ Interview with N. Chimuka, 31/3/2009.

⁸⁰ NAZ, S3700/16, DC Bikita, P. J. Curran to PC Fort Victoria, 27/9/1974.

⁸¹ NAZ, S3700/16, DC Bikita, P. J. Curran to PC Fort Victoria, 27/9/1974

⁸² NAZ, S3700/16, DC Bikita, P. J. Curran to PC Fort Victoria, 27/9/1974

⁸³ Interviews with Kunodziya, 31/3/09 and Chimuka, 31/3/09.

⁸⁴ A.K. Shutt, ‘“The Natives Are Getting Out of Hand”: Legislating Manners, Insolence and Contemptuous Behaviour in Southern Rhodesia, c. 1910–1963’, JSAS, 33, 3 (2007), p. 667.

⁸⁵ NAZ, S3700/16, DC Bikita P.J. Curran to PC Fort Victoria, 27/9/1974.

⁸⁶ NAZ, S3700/16, MIA Internal Correspondence, Strickland to Mr Connolly, (undated).

⁸⁷ See, for example, P. Chabal and J. Daloz', Africa Works: Disorder as Political Instrument (Oxford, James Currey, 1999).

⁸⁸ Cited in NAZ, S3700/16, Kwangware & 47 Others vs. State, 10/10/1974.

⁸⁹ Cited in NAZ, S3700/16, Kwangware & 47 Others vs. State, 10/10/1974

⁹⁰ Cited in NAZ, S3700/16, Kwangware & 47 Others vs. State, 10/10/1974

⁹¹ Justice Macdonald made a number of statements from the bench and extra curial statements which expressed his support for the RF. See Feltoe, ‘Law, Ideology and Coercion’, pp. 106–9.

⁹³ NAZ, S3700/16, State vs. Nyaku, 9/5/1974

⁹² NAZ, S3700/16, State vs. Nyaku, 9/5/1974.

⁹⁴ See D. Jeater, Law, Language and Science: The Invention of the Native Mind in Southern Rhodesia, 1890–1930 (Portsmouth, NC, Heinemann, 2007), pp. 205–13, and Shutt, ‘Legislating Manners’, pp. 656–61.

⁹⁵ See Feltoe, ‘Law, Ideology and Coercion’, p. 56.

⁹⁶ NAZ, S3700/16, PC Victoria W.E.J. Henson, to SIA, 10/10/1974.

⁹⁷ NAZ, S3700/16, Member in Charge – Rural Section, Fort Victoria to DC Fort Victoria, 25/6/1974.

⁹⁸ NAZ, S3700/16, DC Fort Victoria, W.E.J. Henson, to PC Fort Victoria, 27/6/1974.

⁹⁹ NAZ, S3700/16, DC Fort Victoria, W.E.J. Henson, to PC Fort Victoria, 27/6/1974

¹⁰⁰ NAZ, S3700/16, DC Fort Victoria, W.E.J. Henson to PC Fort Victoria, 19/7/1974.

¹⁰¹ Shutt, ‘Legislating Manners’, p. 660.

¹⁰² Comaroff, ‘Governmentality, Materiality, Legality, Modernity’, pp. 112–13

¹⁰³ See also Alexander, ‘The Political Imaginaries’, pp. 487–91.