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Abstract
The administration of justice throughout colonial Africa was profoundly influenced by questions of race. Taking as its starting point studies of the disciplining of farm labour in southern Africa, especially the work of Morrell and Pete on colonial Natal, this article surveys a number of notorious cases that reveal the brutality of corporal punishments administered by settlers to their employees in Kenya before 1930. By the 1920s, Kenya's reputation for excess in respect of corporal punishment was unrivalled anywhere in the British colonies. Kenya's white settlers staunchly defended their right to enact ‘rough justice’ on the farms, while the provisions of the Indian Penal Code contributed to the passing of lenient sentences in several notorious court cases. As in Natal, settlers in Kenya justified their ‘right’ to inflict physical punishment on the ‘raw native’ with reference to the ‘primitive’ nature of African society. The Kenya judiciary was criticised for its leniency in dealing with settler assaults on African workers, and for its own tendency to impose corporal punishments. Although the judiciary initially resisted pressures for reforms that would restrict judicial and extra-judicial corporal punishments, the article illustrates how perceived ‘injustices’ in a series of flogging cases culminated in the rewriting of the Penal Codes by 1930.
Notes
1 S. Pete and A. Devenish, ‘Flogging, Fear and Food: Punishment and Race in Colonial Natal’, Journal of Southern African Studies (hereafter JSAS), 31, 1 (2005), p. 3. See also, S. Pete, ‘Punishment and Race: the Emergence of Racially Defined Punishment in Colonial Natal’, Natal University Law & Society Review, 1, 2 (1986), pp. 99–114.
*Earlier versions of this article have been presented to seminars at Harvard University, Princeton University, the University of Oxford, and SOAS London. I am grateful to those who offered points for discussion, as well as to Adrian Browne, Richard Evans, the late Christopher Fyfe, Jeff Green and Richard Waller for their written comments on earlier drafts of the article.
2 R. Morrell, From Boys to Gentlemen: Settler Masculinity in Colonial Natal 1880–1920 (Pretoria, UNISA Press, 2001).
3 Pete and Devenish, ‘Flogging, Fear and Food’, pp. 6–7.
4 S. Marks, Reluctant Rebellion: The 1906–1908 Disturbances in Natal (Oxford, Clarendon Press, 1970), p. 238.
5 Natal Legislative Assembly Debates, 1909, Volume 42, p. 381, quoted in Pete and Devenish, ‘Flogging, Fear and Food’, p. 4.
6 E. Huxley, White Man's Country: Lord Delamere and the Making of Kenya, (two volumes) (London, Macmillan, 1935); N. Wymer, The Man from the Cape (London, Evans Bros, 1959); L. Farrant, The Legendary Grogan: Kenya's controversial Pioneer (London, Hamish Hamilton, 1981); E. Paice, Lost Lion of Empire: The Life of Cape-to-Cairo Grogan (London, HarperCollins, 2001).
7 Kenya National Archives [hereafter KNA] AG4/118, Joseph Chamberlain to All Colonial Commissioners and Governors, circular, 25 May 1897.
8 KNA AG4/118, Chamberlain to All Colonial Commissioners and Governors, circular, 13 August 1902.
9 KNA AG4/107, Chief Justice Hamilton to Chief Secretary, 27 December 1912.
10 KNA AG4/107, Chief Justice Hamilton to Chief Secretary, 27 December 1912
11 For a full account of this incident, see D.M. Anderson, ‘Sexual Threat and Settler Society: Black Perils in Kenya, c.1907–1930’, Journal of Imperial & Commonwealth History, 38, 1 (2010), pp. 47–74.
12 KNA AG4/107, Chief Justice Hamilton to Chief Secretary, 27 December 1912.
13 KNA AG4/107, Chief Justice Hamilton to Chief Secretary, 27 December 1912
14 KNA AG4/107, Minute from Legal Department (signature illegible), 26 March 1913; KNA AG4/288, Chief Justice R.W. Hamilton, ‘The Origin and Growth of British Jurisdiction and of the Judicial System of the East African Protectorate’, 4 October 1917.
15 KNA AG4/84, Attorney General to Chief Secretary, 17 November 1913.
16 For relevant correspondence, see: Cmd 873, Despatch to the Governor of the EAP Relating to Native Labour and Papers Connected Therewith (London, HMSO, 1920) and Cmd 1509, Despatch to the Governor of the EAP Relating to Native Labour (London, HMSO, 1921). G. Bennett, ‘Settlers and Politics in Kenya’, in V. Harlow and E.M. Chilver (eds), History of East Africa, Volume 2 (Oxford, Clarendon Press, 1963), pp. 290–9, remains the best summary.
17 The accounts that follow are reconstructed from the original trial papers of each case, official papers held in the Kenyan and British archives, and contemporary newspaper commentaries. In addition, some of this material is to be found in the papers of the Aborigines' Protection Society, held in the Rhodes House Library, Oxford, MSS Brit. Emp. s. 22.
18 KNA AG5/2494, ‘High Court Criminal Case No. 38/1918, Crown vs (1) H.E. Watts and (2) C.S.L. Betchart’. See J. Green, ‘The African Progress Union of London 1918–25: A Black Pressure Group’ (unpublished paper, presented at the Institute of Commonwealth Studies, London, 5 February 1991).
19 KNA AG5/2494, ‘High Court Criminal Case No. 38/1918, Crown vs (1) H.E. Watts and (2) C.S.L. Betchart’.
20 KNA AG5/2492, papers and notes of Judge Sheridan.
21 KNA AG5/2494, Barth to CS, 13 March 1919.
22 KNA AG5/2494, ‘Crown vs Watts & Belchart, report by Tooth’, 28 December 1918, and Barth to Chief Secretary, 13 March 1919, commenting on Maxwell's report on the case.
23 British National Archives [hereafter BNA] CO 533/298/55363, for a summary by Sheridan in ‘Report on Rex v. Abraham and others’, 3 October 1923.
24 BNA CO 533/236/54366, ‘Flogging and Torture of a Native at Ruiru’; KNA AG5/2492, ‘Minutes on other related cases’; BNA CO 533/298/55363, ‘Report on Rex v. Abraham and Others’, Judge Sheridan, 3 October 1923.
25 Based upon summaries in KNA AG5/2492, ‘Minutes of other related cases’; and BNA CO 533/298/55363, ‘Report on Rex v. Abraham and others’, Judge Sheridan, 3 October 1923.
26 KNA AG5/2492, ‘Nakuru Supreme Court, Criminal Case 73/1923, Crown vs J. Abraham’. A brief summary of the case, drawn from press reports, is given in D. Kennedy, Islands of White: Settler Society and Culture in Kenya and Southern Africa 1890–1939 (Durham, NC, Duke University Press, 1987), and has been recently elaborated with some additional material, in M.J. Weiner, An Empire on Trial: Race, Murder and Justice under British Rule 1870–1935 (Cambridge, Cambridge University Press, 2009), pp. 193–4, 212–17.
27 KNA AG5/2492, Acting Registrar to Attorney General, 28 June 1923.
28 A. Curtis (ed.), Memories of Kenya: Stories from Pioneers (Nairobi, Evans Bros, 1986), p. 107, for a picture of Abraham with his daughter.
29 Reconstructed from papers in KNA AG5/2492.
30 This was not the first occasion that Kitosh had been the victim of a serious beating at the hands of Abraham. The police had previously warned Abraham about his conduct after Kitosh had fled from the farm following a flogging: no action had been taken on the understanding that he would take Kitosh back into service. Inspector Rice reported this at the committal proceedings, but Magistrate Hopkins disallowed the evidence as ‘irrelevant and only likely to prejudice the case of the Accused’. See KNA AG5/2492, ‘Committal Proceedings’.
The police also believed Jasper Abraham and his two brothers to be involved in extortion with menaces against their farm squatters. Prior to the Kitosh case the evidence was considered by the Attorney General to be conclusive enough to merit prosecution, but no action was taken. See KNA AG4/4925, for full details.
31 Magistrate Pedraza placed the three African accused on remand on 13 June 1923 and granted bail to Abraham, on a cash bond of Shs 2000/– and a further surety of Shs 2000/-, until the committal proceedings at Nakuru before magistrate Gerard Hopkins on 20 June 1923. The action of the magistrate was criticised by the Commissioner of Police – see KNA AG5/2492, W.R. Foran to Attorney General, 27 June 1923.
32 KNA AG5/2492, Nakuru Supreme Court, Criminal Case 73/1923, ‘Judgment’, Judge Joseph Sheridan, 8 August 1923.
33 KNA AG5/2492, ‘Case notes’, Judge Sheridan.
34 KNA AG5/2492, Dr Henderson's report, dated 12 June 1923.
35 KNA AG5/2492, ‘Case notes’, Judge Sheridan. East African Standard, 1–9 August 1923, provided daily reports on the proceedings and gave prominent coverage to the medical evidence.
36 N. Leys, Kenya (London, Hogarth Press, 1926), pp. 176–81, gives an account of the case and discusses the general tendency for the Kenyan settler to flog African labourers.
37 BNA CO 533/296/39732, minutes by Bottomley and Bushe, 24 July 1923; minute by Read, 25 July 1923; BNA CO 533/296/41429, Bottomley to Bishop of Derby, 22 August 1923.
38 KNA AG5/2492, ‘Case notes’, Judge Sheridan: The nine jurors were: Major Boyce, a leading member of the Solai Farmers Association; Henry Gunson, a sheep farmer from Eldama Ravine; William Evans, a settler at Rongai; H.T. Ward, formerly LegCo member for Nairobi North and married to the daughter of Governor Belfield; General Sladen, the jury foreman; and four settlers from Nakuru district, Lawrie, Walkden, Cranswick and van Ravensberg. From 1914 the Criminal Procedure Code was amended allowing only Europeans to qualify for jury service, regardless of educational or property requirements. See R.M. Maxon, John Ainsworth and the Making of Kenya (Lanham, MD, University of America Press, 1980), p. 42.
39 KNA AG5/2492, A.M. Tooth to Attorney General, 5 July 1923.
40 KNA AG5/2492, Commissioner of Police to Attorney General, ‘Confidential’, 16 July 1923.
41 See papers in KNA AG5/2492.
42 BNA CO 533/298/55363, ‘Report on Rex v. Abraham and others’, Judge Sheridan, 3 October 1923.
45 Blixen, Out of Africa, p. 302.
43 K. Blixen, Out of Africa (London, Jonathan Cape, 1964. 1st edn, London, Putnam & Co., 1937), pp. 298–304.
44 Blixen, Out of Africa, pp. 301–2. The reports of the Abraham case in the East African Standard made much of the supposed ‘peculiarities’ of the African psyche, as well as comments that Africans are better able to withstand pain than Europeans.
46 Blixen, Out of Africa, pp. 303–4.
47 KNA AG5/243, Government Notice No. 205, 25 May 1921.
48 KNA AG5/241 for a transcript of the evidence presented to the Native Punishments Commission [hereafter NPC], along with a copy of the report. Seventy-four witnesses appeared, but among them were only eight Africans. The commission was set up as a consequence of persistent settler agitation over labour matters on the Legislative Council. For a fuller discussion of the Commission, see D.M. Anderson, ‘Master & Servant in Colonial Kenya, 1895–1939’, Journal of African History, 41, 3 (2000), pp. 435–70, and ‘Registration and Rough Justice: Labour Law in Kenya, 1895–1939’, in P. Craven and D. Hay (eds), Masters, Servants, and Magistrates in Britain and the Empire, 1562–1955 (Chapel Hill, NC, North Carolina Press, 2004), pp. 498–529.
49 BNA CO 533/296/42809, ‘Native Punishments Committee Report’, 30 July 1923. For reference to the Committee Report in the correspondence relating to the Abraham case, see KNA AG5/2492, Devonshire to Coryndon, 7 January 1924.
50 KNA AG5/241, NPC Evidence, W.B. Brook (Resident Commissioner, Kitale).
51 KNA AG5/241, NPC Evidence, W.B. Brook (Resident Commissioner, Kitale), NPC Evidence, D.R. Crampton (District Commissioner, Meru).
52 KNA AG5/241, NPC Evidence, W.B. Brook (Resident Commissioner, Kitale), NPC Evidence, F.J. Bamber (District Commissioner, Baringo).
53 KNA AG5/241, NPC Evidence, W.B. Brook (Resident Commissioner, Kitale), NPC Evidence, Wollesley-Bourne, R.F. Hamilton, and R.W. Hemsted.
54 KNA AG5/241, NPC Evidence, W.B. Brook (Resident Commissioner, Kitale), NPC Evidence, de Wade, Palethorpe and Fazan.
55 KNA AG5/241, NPC Evidence, W.B. Brook (Resident Commissioner, Kitale), NPC Evidence, Eric Johnson.
56 KNA AG5/241, NPC Evidence, W.B. Brook (Resident Commissioner, Kitale), NPC Evidence, Tate (District Commissioner, Lumbwa).
57 KNA AG5/241, NPC Evidence, W.B. Brook (Resident Commissioner, Kitale), NPC Evidence, R.W. Hemsted.
58 KNA AG5/241, NPC Evidence, W.B. Brook (Resident Commissioner, Kitale), NPC Evidence, Henry C. Stanning, a sisal planter from northern Nakuru.
59 KNA AG5/241, NPC Evidence, W.B. Brook (Resident Commissioner, Kitale), NPC Evidence, E.N. Millington.
60 KNA AG5/243, ‘Report of the Native Punishments Commission’.
63 KNA AG5/2492, Devonshire to Coryndon, 20 December 1923; BNA CO 533/296/39732, ‘Charges against J. Abraham’, 9 August 1923; BNA CO 533/298/55363, ‘Rex v. Abraham’, 12 August 1923; BNA CO 533/296/41429, ‘Case of Mr Abraham’, 18 August 1923; and BNA CO 533/305/46261, ‘Flogging of Kitosh’, 17 September 1923.
61 An account of the reaction to the Abraham case is given by Weiner, An Empire on Trial, pp. 12–15.
62 After Northey's dismissal from the governorship, largely as a consequence of his eagerness to support settler political aspirations, Coryndon was appointed with the aim of reasserting ‘native’ interests and holding the settlers in check.
64 KNA AG5/2492, Devonshire to Coryndon, 20 December 1923, composed entirely on the basis of a minute by Risley, 30 November 1923 that can be found in BNA CO 533/298/55367.
65 KNA AG5/2492, Coryndon to Thomas, 29 March 1924. It is apparent that Coryndon was under great pressure from his senior legal officers to support their position regarding the Abraham case.
66 KNA AG5/2492, ‘Judgment’, Judge Joseph Sheridan, 8 August 1923.
67 KNA AG5/2492, Devonshire to Coryndon, 7 January 1924. Devonshire made direct reference to his reading of the recently published report of the Native Punishments Committee, and especially to the alarming character of the evidence presented to that enquiry by representatives of Kenya's settler community.
68 KNA AG5/2492, Thomas to Coryndon, 18 July 1924.
69 KNA AG5/2492, Barth to Denham, 2 September 1924, and Barth to Denham, 19 November 1924, in which the Chief Justice defended the verdict of the court, but conceded that he ‘might have given a more severe sentence if I had tried the case myself’.
70 KNA AG5/2492, Lyall Grant to Denham, 24 December 1924, and forwarded to London.
71 KNA AG5/243, Amery to Coryndon, 19 December 1924.
72 See, for examples, KNA AG5/242, minute by R.W. Lyall to Attorney General, 13 February 1926, and minute by Acting Solicitor General, 18 February 1926.
73 Anderson, ‘Sexual Threat and Settler Society’, pp. 58–69. Settler ‘folk memory’ of the Natal rape scare of the 1880s resurfaced in the midst of this debate, with Kenya's settlers clamouring for the protections they believed their Natal counter-parts had won and invoking the ‘frontier spirit’ that they imagined the Natal case encapsulated: for the reality, see J.C. Martens, ‘Settler Homes, Manhood and Houseboys: an Analysis of Natal's Rape Scare of 1886’, JSAS, 28, 2 (2002), pp. 379–400.
74 KNA AG5/242, Denham to Amery, 1 September 1925.
75 KNA AG5/242, Amery to Grigg, 18 January 1926.
76 Weiner, An Empire on Trial, pp. 216–17.
77 For example, the Selwyn case in 1934 and the case of Herbert Dickinson in 1946. For Selwyn, see P. Collinson, ‘The Cow Bells of Kitale’, London Review of Books, 25, 11 (5 June 2003), pp. 15–18, and Weiner, An Empire on Trial, pp. 218–20. For the press commentary, see East African Standard, 28 July, 4 August, 25 August, 8 September, 29 September and 6 October 1934, and for the official trial papers BNA CO 533/450/1. For Dickinson, the full case papers are in KNA MLA/1/461.
78 D.M. Anderson, Histories of the Hanged: Britain's Dirty War in Kenya and the End of Empire (New York, W.W. Norton; London, Weidenfeld & Nicolson, 2005).
79 Pete, ‘Punishment and Race’, describes the emergence of ‘racially defined punishment’ in Natal.
80 Anderson, ‘Master and Servant in Colonial Kenya’.
81 This reflects English use of flogging in schools and prisons as an instrument of character formation. See M. Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution 1750–1850 (London, Macmillan, 1978).
82 Morrell, From Boys to Gentlemen.
83 Weiner, An Empire on Trial, pp. 193–221. See also, M.G. Redley, ‘The Politics of a Predicament: the White Community in Kenya, 1918–1932’ (Ph.D. thesis, University of Cambridge, 1976).
84 Pete and Devenish, ‘Flogging, Fear and Food’, p. 9.
85 For the Kenya figures relating to labour offences up to 1939, see Anderson, ‘Master and Servant in Colonial Kenya’, and for other kinds of evidence from 1930, see D. Branch, ‘Imprisonment and Colonialism in Kenya c. 1930–1952: Escaping the Carceral Archipelago’, International Journal of African Historical Studies, 38, 2 (2005), pp. 239–65.