White settlers and the law in early colonial Kenya

Abstract

This article examines settler attitudes toward the law and the legal system in early colonial Kenya. Settlers believed that English law was the culmination of centuries of evolution and was unsurpassed for its justice and logic. Nonetheless, they insisted English law and legal procedure were supremely ill-suited for the African context. When courts released Africans on “technicalities” it only encouraged more crime; insufficient punishments did the same. Settlers argued that the state – administrators and the judiciary – must twist the legal system to fit settler needs. The law must be a tool used on behalf of whites to bend Africans to their will. It must be personal and racially biased, the punishment swift and sharp. In many ways, settlers held an older, cruder understanding of the law, one more suited to manorial estates or Jim Crow America.

Keywords:

• law
• settler colonialism
• Kenya
• racism

Notes

1. Benton, Law and Colonial Cultures.

2. Chanock, The Making of South African Legal Culture

3. For an overview, see Roberts and Mann, “Law in Colonial Africa.” For Kenya, see Cooper, From Slaves to Squatters, ch. 3; Willis, “Thieves, Drunkards, and Vagrants”; Anderson, “Master and Servant in Colonial Kenya.”

4. See, for example, Natsoulas, “Harold G. Robertson”; Duder, “Men of the Officer Class”; Duder and Youé, “Paice's Place”; Berman, Control and Crisis; Nicholls, White Tribe. Comparing issues of the East African Standard, the Leader, the Kenya Critic, and Outlook illuminate how divided whites could be on certain issues, and how personal the attacks could become

5. Kennedy, Islands of White

6. Van Zwanenberg, Colonial Capitalism and Labour; Clayton and Savage, Government and Labour in Kenya.

7. Youé, “Threat of Settler Rebellion”; Rosberg and Nottingham, Myth of Mau Mau

8. Wiener, Reconstructing the Criminal

9. The literature here is growing. For foundational texts, see Ranger, “Invention of Tradition” and Chanock, Law, Custom. Specific to Kenya, see Shadle, “Girl Cases”

10. Wiener, Reconstructing the Criminal, 57–61; Dyer, “A Most Unexampled Exhibition of Madness and Brutality”; Hall, “The Mind that Burns in Each Body.”

11. I deal with the question of white settler prestige in more detail in Shadle, “Race, Ethnicity and Prestige.” For administrators, see Berman, Control and Crisis

12. “The Murder,” East African Standard (EAS), Jan. 1, 1908, 10

13. Shadle, “Changing Traditions”; Shadle, “From ‘Traditional’ to ‘Modern’.”

14. “Conduct of Hon. K.R. Dundas and Mr. Montgomerie: Allegations of Mr. G.L. Langridge,” British National Archive (NA): CO 533/88/27210

15. The phrasing comes from Morris, “English Law in East Africa.”

16. See Waller, “Towards a Contextualisation of Policing in Colonial Kenya”, in this volume.

17. See, for example, the letters to the editor by R.W. Burkitt, EAS, Aug. 29, 1922, 5, and Sep. 8, 1922, 5. The editors and other writers took exception to his claim that God had willed whites to rule, but not that whites should in fact rule. “The Right to Rule,” editorial, EAS, Aug. 30, 1922, 4; Thos. O'Shea, letter to ed., EAS, Sep. 13, 1922, 5. See also “A.D.,” “Current Topics,” EAS, June 21, 1923, 6. Eugenics thinking became more important, at least in certain circles in Kenya, in the 1930s. See Campbell, Race and Empire

18. For but a few examples of such thinking – which was rarely disputed by any whites – see M.C. Monckton, letter to ed., EAS, June 17, 1922, 5; Seymor H.C. Hawtrey, letter to ed., EAS, June 22, 1922, 2, 7; “Planter” (from Kampala), EAS, July 13, 1922, 3; “The Right to Rule,” EAS, Aug. 30, 1922, 4.

19. The examples of such thinking are legion. For a few examples, see “Onlooker,” “The Native: And How Best to Deal with Him,” EAS, June 7, 1913, 4; “Mission Boys,” EAS, July 5, 1919, 17

20. Although some wondered if Africans were too far behind ever to catch up. “Africa in the Making,” EAS, Aug. 27, 1922, 2, 7

21. For earlier debates on English law's applicability to non–English settings, see Singha, A Despotism of the Law, 27–32. See also Read, “English Law in East Africa.”

22. Evidence of Capt. W.F.S. Edwards, Native Labour Commission (NLC), p. 228

23. Letter to the editor, EAS, Sep. 19, 1918, 5. Whites also pointed to the use of African and Indian assessors (meant to advise judges in serious criminal cases involving members of their “tribe” or religion) to advance the argument that English judicial traditions were lost on non-whites. White observers, including judges, often pointed out that the assessors either did not understand their role or failed to give impartial advice. See, for example, “Nairobi and the Jury System,” and “The Value of Kikuyu Assessors,” both in EAS, May 2, 1908, 8

24. Despatch from Ag. Gov. to Secretary of State for the Colonies (SS), Nov. 9, 1933, reproduced in Bushe Report, 104–8, quote from 105. See “Report of the Commission of Inquiry into the Administration of Justice in Kenya, Uganda and Tangaiyika Territory in Criminal Matters (Bushe Report),” cmd. 4623

25. Evidence of T.R. Swift, Punda Milia, NLC, p. 218; Minutes of the Lumbwa Farmers Association, Sep. 13, 1926, and Oct. 10, 1927, Rhodes House Library (RH): MSS Afr. s. 613; “Coddling the Native,” EAS, March 11, 1914, 6; Secretary, Kikuyu District Settlers’ Association, to Colonial Secretary, June 29, 1926, Kenya National Archive (KNA): Jud 1/1465; R.J. Mitchell, Secretary, Trans Nzoia Farmer's Association, to Attorney General, Sep. 2, 1931, KNA: Jud 1/1465

26. See Morris, “English Law in East Africa,” 74–9

27. Provincial Commissioner Nyanza to Chief Native Commissioner, May 23, 1933, KNA: L&O 2/1/1/1; Seaton, Lion in the Morning, 23–4.

28. Oldfield to Registrar, Supreme Court, Aug. 11, 1930, and Ag. Deputy Registrar to Oldfield, Aug. 15, 1930, both in KNA: Jud 1/1465. Oldfield had noted in his sentencing that the accused as a member of the Kikuyu Central Association, and was “a very truculent and swollen headed Kikuyu Mission native who must sooner or later run foul of the law.” See also McClure, Land-Travel and Seafaring, 101

29. Pfeifer, Rough Justice, 67. Similar complaints arose in eighteenth-century England. See Hay, “Property, Authority, and the Criminal Law,” 32–3

30. “Natives and the Law in Kenya,” Times, July 26, 1926, 11. See also speech by Powys-Cobb at the Convention of Associations meeting, in EAS, Feb. 27, 1926, Special Supplement, 7; “Things We Want to Know,” Kenya Critic, July 15, 1922, 15. For a fictional discussion along these lines by a former settler, see Riddell, Kismet in Kenya, 261–2

31. “Kenya Settlers and Native Labour,” Times, Nov. 1, 1926, 13. See also “Cause and Effect,” Advertiser of East Africa (Advertiser), July 16, 1909

32. Brodhurst–Hill, So This is Kenya!, 145; Cobbald, Kenya, 214; Routledge and Routledge, With a Prehistoric People, 220. For similar comments by a former colonial official, see McClure, Land-Travel and Seafaring, 94–5, 101

33. “Occasional Notes,” EAS, Sep. 19, 1908, 9

34. “Commonsense Law,” EAS, Aug. 19, 1910, 2.

35. “Coddling the Native,” EAS, March 12, 1914, 6

36. “The Zanzibar Court of Appeal,” EAS, May 16, 1908, 10. See also H.B. Dooner, letter to editor, East Africa, 1934, clipping in (British) National Archives (NA): CO 533/441/1; Capt. H.L.R. Watt to SS, 27 Oct. 1935, NA: CO 533/456/2.

37. See speech by Colonial Secretary, LegCo debates, Oct. 31, 1927, p. 666; Despatch from Ag. Governor to SS, Nov. 9, 1933, reproduced in Bushe Report, 105, and enclosure, A. de. V. Wade, “Memorandum,” 115–16, 118–19

38. For an East African context for this paragraph, see Morris, “English Law in East Africa.”

39. G.H. Pickering, Judge of the High Court, Comments on Native Court Regulations, Oct. 3, 1919, KNA: Jud 1/1104

40. Churchill, My African Journey, 26–27

41. Barth to Governor, Aug. 5, 1926, KNA: Jud 1/1465.

42. Barth to Governor, Jan. 18, 1927, KNA: Jud 1/1465. Barth also pointed out that, in practice, very few decisions were altered: in 1925, out of 982 cases the Supreme Court had to review, it confirmed without alteration 94.8% of them; in 1926, the number was 95.3% of 1001 cases

43. Barth to Governor, Jan. 18, 1927, KNA: Jud 1/1465; see also in the same file Barth to Governor, Aug. 5, 1926

44. Bushe Report, 8–10, 48–55. A.D.A. MacGregor, the Attorney General and a member of the commission, noted that he “for years had to advise the Supreme Court that I was unable to support large numbers of sentences which in my opinion were so severe as sometimes to be almost savage.” MacGregor, “Administration of Justice Report,” enclosure in despatch from Ag. Gov. to SS, Nov. 9, 1933, reproduced in Bushe Report, 112

45. Bushe Report, 54. Such judicial attitudes slipped during the early years of Mau Mau. Anderson, Histories of the Hanged; Lonsdale, “Kenyatta's Trials.”

46. Seaton, Lion in the Morning, 79

47. “Another Injustice,” Advertiser, Feb. 19, 1909

48. “The Cooke Inquiry,” Daily Observer April, 28, 1923, clipping in KNA: AG 51/329

49. G.S. Sneyd, Secretary of Rongai and Lower Molo Farmer's Association, “Settler and Native,” EAS, Oct. 30, 1920, 9; “A Comparison,” Nairobi News, Feb. 8, 1905, 2. Relations could be testy indeed: Patrice Mary Geraldine Rainbow hit a magistrate on the head with a wastebasket during court proceedings. LegCo debates, May 30, 1924, pp. 185–7

50. Brodhurst-Hill, So This is Kenya!, 145;

51. “Coddling the Native,” EAS, March 8, 1913, 22. See also “The Government's Native Policy: Severe Criticism,” EAS, March 7, 1908, 4

52. “Dignity,” EAS, June 19, 1920, 16; M.G.C., letter to editor, EAS, Feb. 22, 1921, 2.

53. “Occasional Notes,” EAS, July 22, 1911, p. 11. See also “Crime and Punishment,” EAS, April 17, 1920, 24; W.M Hudson, letter to editor, EAS, May 15, 1920, 2; “The White Man's Remedy,” EAS, June 29, 1907, 11.

54. Henry Tarlton, letter to ed., EAS, June 21, 1923, 5. See also J.T. Oulton, letter to ed, Times of East Africa (TEA), Aug. 18, 1906, 5; “The Beginning of the End,” TEA, April 6, 1907; “A Distinct Menace,” Advertiser, Aug. 14, 1908, 3

55. “Leniency or Licence?” EAS, June 22, 1923, 4

56. “Wanted: Severer Sentences,” TEA, Aug. 11, 1906, 4

57. E.A. Ashe, letter to the editor, Advertiser, Nov. 22, 1907, 2. See also “Occasional Notes,” EAS, Feb. 16, 1907, 7; “Occasional Notes,” EAS, March 20, 1909, 9; “Crime and Punishment,” EAS, April, 17, 1920, 24; M.C. Monckton, letter to editor, EAS, April 17, 1920, 29; “Warning to Government,” EAS, May 22, 1920, 18d; Bache, Youngest Lion, 261; Brodhurst-Hill, So This is Kenya!, 185; Hamilton, Turn the Hour, 67; Seaton, Lion in the Morning, 23; Strange, Kenya To-day, 83–4; Conway Harvey in LegCo, Aug, 17, 1928, 565

58. Evidence of T. Howitt, NLC, 31. See also evidence of J.K. Watson, Nairobi, NLC, 66.

59. Safari guide quoted in “Onlooker,” “The Native: and How Best to Deal with Him,” EAS, May 31, 1913, 24–5. See also “Coddling the Native,” EAS, March 11, 1914, 6; “Editor's Notes,” Advertiser, Oct. 16, 1908, 3

60. Evidence of J. Drought, NLC, 182. While no “big native rising” took place within the two years Drought projected, in 1917 he was speared to death during a robbery, for which three men were executed. “Drought Murder,” EAS, Feb. 2, 1918, 24

61. “Coddling the Native,” EAS, March 8, 1913, 22

62. See, for example, Croynne Manley, letter to ed., EAS, July12, 1919, 22; “The Case for Kenya,” EAS, March 5, 1920, 3.

63. “A Settler,” letter to the editor, EAS, March 27, 1920, 27; “A White Man,” letter to the editor, Daily Leader, May 24, 1920, clipping in KNA: AM 1/1/5

64. It appears, however, that the Africans’ real “crime” had been to jiggle excessively the rickshaw in which they were conveying the women. See Ag. Commissioner to Sec. State, May 3, 1907, NA: CO 533/29/15843; Note in file by H.J.R., May 4, 1907, NA: CO 533/28/15409; Foran, A Cukoo in Kenya, 288

65. “Found Guilty,” EAS, April 6, 1907

66. C.W. Hobley to Governor, March 22, 1907, NA: CO 533/28/13510. Comparison with lynching in the US is instructive:Lynchers failed to assimilate conceptions of an abstract, rational, detached and antiseptic legal process that urban middle-class reformers wrote into statutes, particularly those pertaining to capital punishment, and that state appeals courts increasingly enshrined in rulings pertaining to legal procedure in capital cases. Mobs were impatient with the inevitable delays of legal process and disdainful of the alleged leniency of legal solutions and the seeming distance of a newly professionalized and bureaucratized criminal justice apparatus. They instead enforced racial and class goals through ritualized, communally based punishment. Postbellum mobs did not respond to an absence of law but rather to a style of criminal justice that was careful and deliberative, ostensibly impersonal and neutral, in which the rights of the defendant, the reform of the criminal, and humanitarian considerations were factored in beyond the punitive demands of communal opinion.Pfeifer, Rough Justice, 3. See also Wright, Racial Violence in Kentucky, 63, 225–6

67. “Unflinching Justice at Last at the Town Magistrate's Court,” The Star of East Africa, March 16, 1907, clipping in NA: CO 533/28

68. “The Supreme Law,” The Star of East Africa,” March 16, 1907, clipping in NA: CO 533/28. On the weakness of the judiciary, see also “Cold Facts,” EAS, April 20, 1907, 10. Settlers called for vigilantism during other black perils in 1920 and 1926. See “A Father,” letter to editor, EAS, May 29, 1920, 2; “Childrens’ Peril,” Daily Leader, April 9, 1920, and “Protecting White Ladies from Assault,” Daily Leader, Oct. 16, 1922, both clippings in KNA: AM/1/1/5; “Native Crimes Against White Women,” Times, June 18, 1926, 13. The Convention of Associations similarly warned that if law could not contain the situation, then extra–legal activity might result. Executive, CA, letter to editor, EAS, June 19, 1926, 32. The Standard tended to be more ambivalent toward vigilantism, expressing their understanding why men could be pushed to it, but insisting that the law too had to be obeyed and lawbreakers punished. See “The Climax,” EAS, March 16, 1907, 9; “The Flogging Incident,” EAS, March 23, 1907, 9; “Stop Thief,” EAS, Aug. 9, 1919, 17; “Native Passes,” EAS, Aug. 18, 1919, 9; “Warning to Government,” EAS, May 22, 1920, 18D

69. I am developing the topic of corporal punishment by settlers (which was widespread and vigorously defended) more extensively in other work. On settler-imposed fines, see KNA: AG 25/43; “Shooting Goats,” Kenya Observer, Aug. 25, 1923, 3

70. NLC: evidence of Charles Anderson, p. 24; E.A. Bool, p. 58; C.H. Reynolds, Executive Engineer, P.W.D., p. 82; Ahmed Khan, 292

71. C.F. Lobo, “Native Insolence,” letter to editor, EAS, May 31, 1913, 25; Brodhurst-Hill, So This is Kenya!, 212

72. KNA: DC/NYK 3/9/3

73. “Leniency or Licence?” EAS, June 22, 1923, 4

74. LegCo debates, Oct. 30, 1923, p. 45. The attorney general in the LegCo pushed back against settler demands to be appointed justices of the peace since they lacked proper legal training. See also the conclusions of the Native Punishment Commission, 1924

75. LegCo debates, March18, 1926, p. 55. See also “His Excellency's Speech,” EAS, Feb. 27, 1926, 9, 13. This extension of powers appears not to have been granted, however. See Rongai Valley Farmers Association, minutes, July 8, 1934, RH: MSS Afr. s. 1618

76. See, for example: Bache, The Youngest Lion, 62; Barnes, Babes in the African Wood, 135; Buxton, Kenya Days, 93, 156–7; Carnegie, A Kenyan Farm Diary,152–3; Huxley, White Man's Country, 200, 280, 303

77. Norman Leys thought the settler had more power than a magistrate, in that the former's judgments were never reviewed or appealed. Written evidence of Leys, NLC, 273

78. Money, Ginia, 242

79. Dinesen, Out of Africa, 101–62, quote from 111

80. Evidence of C. Dundas, NLC, p. 248. The Resident Commissioner at Naivasha noted that on “nearly every farm” with squatters “has its own little ‘Kiama,’” something of which he and Chief Justice Barth disapproved. It is not clear, however, if these were run and /or supported by settlers. RC, Naivasha to Chief Justice, Nov. 10, 1922, and reply by Barth, Dec. 4, 1922, KNA: Jud 1/1104. Thus one of the Chief Native Commissioner's main concerns about appointing settlers as justices of the peace was how Africans would react to being tried by a private individual rather than a member of the government. LegCo debates, Oct. 30, 1923, p. 46

81. Supreme Court confirmation case 333 of 1930, KNA: Jud 1/1465; M.W. Dobbs, “Recollections of Kenya, 1906–1931,” p. 7, RH: MSS Afr. s. 504.

82. Note in file, NA: CO 533/371/4, “Labour in Kenya: Thrashing of Natives by Employers.” See also DC Central Kavirondo to Senior Commissioner (SC), Nyanza, April 4, 1925, DC South Kavirondo to SC Nyanza, April 22, 1925, and SC Nyanza to CNC, May 2, 1925, all in KNA: NZA/15/7; Denham, Ag. Gov., to Amery, SS, Sep. 1, 1925

83. See for example, NA: CO 533/481/1 and 533/481/2

84. Anderson, Histories of the Hanged