Group 2 G34/142833/2021 _Eugene Owino Ismael

Discuss how the diverse economic, imperial and civilization interests played out and
influenced the legal framework that characterized AJS during the Colonial rule in
Kenya.
Introduction
There is no doubt as to whether the different economic, imperial and civilization interests
played a part and influenced the legal framework that characterized African Justice System
(AJS) during Kenya’s colonial rule. The said interests all shared a common underlying goal;
to undermine, weaken1 and replace subsisting African Justice Systems in the country at the
time.
With the advent of colonialism, the initial approach was to apply customary law on personal
matters while criminal matters applied to both written law and African customs 2. To that
extent it is worth noting that consequently, the legal framework used was of a hybrid nature
encompassing aspects of African customary law and the European systems. Despite the
common underlying goal, the divergence in the interests however became apparent pursuant
to the driving force behind each colonial agenda.
The economic demographic for starters sought cheap, readily available, stable, and
disciplined African labour force to support; settler farming, extraction of the abundant
African raw materials and the construction railways to transport the extracted raw materials.
The imperials on the other hand were after expeditious securing of political dominance
during the Scramble for Africa3 while keeping administrative costs low in an attempt to
expand their territories whereas those pursuing the civilization agenda justified their actions
under the guise of spreading justice, modernity and morality to the indigenous African
population which was regarded as an ostensibly backward people.
An understanding of the preceding submission thereafter paints a clearer picture on why the
legal framework and the then provisions of law during the colonial period were structure in
the manner they were. Some provisions that can be mentioned at this preliminary stage,
though are discussed in the subsequent sections, to further emphasize the ideas can include
1. Native Authority Ordinance, 1912 which was aimed at ensuring that Africans
remained bound by customary obligations that kept them economically useful, such as
controlling movement through pass laws or enforcing labour obligations upon the
Africans through local chiefs thus furthering the economic agenda. The hut tax
created through the monetary economy system, was equally a form of raising revenue
as it was an imperial/subjugative tool on the Africans as it coerced Africans into
working for the European settlers in order to get paid for their provided labour.4

1
HWO, Okoth-Ogendo, “The Tragic African Commons: A Century of Expropriation, Suppression and
Subversion” University of Nairobi Law Journal Vol. 1 (2003), pp.107-117.
2
Ibid
3
‘History of Europe - Prewar Diplomacy, WWI, WWII | Britannica’ <[Link]
of-Europe/Prewar-diplomacy> accessed 21 April 2025.
4
kush, ‘Economic Exploitation During Colonial Period’ (Young African Pioneer, 23 June 2018)
<[Link]
accessed 21 April 2025.
 2. The Native Courts Regulations Ordinance, 1897 which served as an instrument for the
Imperialists as it created colonial offices such as Courts. It also officially recognized
the application of Islamic law, which was later practiced in the Islamic Courts
established by the 1907 Native Courts Ordinance. 5 All these were in furtherance of
the imperial ideals of the colonialists who deemed themselves superior to their
colonial subjects and their conquered territories as extension of their countries of
origin hence need to introduce their norms from Europe.

3. The East Africa Order-In-Council, 1897 contained a particular provision (Repugnancy

Arguably the colonialists as a whole achieved what they were after since towards the end of
each’s tenure Africans and for purposes of this paper, Kenyans had been; politically
manipulated for imperial rule, economically exploited and sidelined6 and culturally
undermined through the imposed European moral and legal standards.7 Kenyans lost their
fertile lands during settler farming with some being made squatters therein and those who
provided labour were subjected to inhumane working conditions.
This paper will examine at length how the three colonial interests manipulated the legal
framework of the time to rearrange and subordinate African Judicial Systems, with a large
part highlighting the numerous instances the repugnancy of AJS was brought up after the
formalization of native laws within the restrictive colonial justice system in Kenya.
The impact of colonial laws will also be discussed within the given context in proving that
the restructuring of the legal framework solely served the Westerns’ agenda instead of
serving the Africans to whom the system originally belonged to.

5
Dr Patricia Kameri-Mbote, Gender Dimension of Law, Colonialism and Inheritance in East Africa
International Environment Law Centre (2001)
6
Settles, Joshua Dwayne, “The Impact of Colonialism on African Economic Development” (1996). Chancellor’s
Honors Program Projects
7
The case of R v. Amkeyo (1917), shows how colonial civilizing ideology actively displaced traditional norms. A
marriage under African customary law was deemed invalid, and a ‘wife’ was forced to testify against her
husband because she was "not a legal wife".