Working Paper Series No. 112 A FALSE START Law and Development in the context of a colonial legacy Bas de Gaay Fortman and Paschal Mihyo October 1991Working Paper Series No. 112 A FALSE START Law and Development in the context of a colonial legacy Bas de Gaay Fortman and Paschal Mihyo october 1991 ‘Colonialism has had its faults, but it also has had its virtues. I speak from some knowledge on the subject. I have visited twelve countries which at one time or another have passed through the status of British colonialism... ‘The common law, the Parliament, the English language, freedom of speech, assembly, press and religion ~ these are the institutions which are the proud legacy of the British people in lands throughout the world.’ Richard M. Nixon (1958) ‘who does not know that the victors keep their property and add to it that of the vanquished, whereas the vanquished lose all at once, their persons and their property?’ Xenophon (+370 BC)Ir IIE v Refer cases COLONIAL RULE 2.1 Law in a social context 2.2 Political domination 1.3 Social stratification 1.4 Economic exploitation LEGAL SUBORDINATION 2 The legislative process 2 ‘Rules and roles +3. Precision and predictability 4 The role of sanctions EUROPEAN LAW IN AN APRICAN WORLD 3.1 Independence with ‘continuity’ Modernisation and professionalisation Law and developmentalism 1 Law, social engineering and rural transformation +2 Law and human resource development 3. Law and urban planning CONCLUDING OBSERVATIONS ences Page 17 18 23 25 28 30 34 36 42I COLONIAL RULE 1.1 Law in a social context ‘There is a curious dichotomy today between on the one hand a fast production of laws all around the world and on the other hand the apparent irrelevance of law in many countries. Taking a closer look, however, we can see a connection between legal fetishism and legal irrelevance: both point to the negligence of the context within which law has to function. Law is seen as a product. Legal fetishisn may be regarded as overproduction; legal irrelevance points to a lack of interest in the consumption of legal products In this paper we see law not as a product, as a given set of rules and given procedures for their enforcement and for dispute settlement, but rather asa process. Law is not a noun but a verb. We reject the idea that law might be abstracted from its social context and seen as an entity controlling that context. The decisions people make are not only influenced by law but also by rivalry, social, religious or economic coercion, various types of Anducement and collaboration. All such behaviour may also affect the law. Thus, law-declaring, law-enforeing and dispute settlement form only part of the regularization of society (Falk Moore, 1978). Other types of activities may result in the reconstruction or even unmaking of law. Law does not cause social change, it is merely part of such a process. This view implies that we reject instrumentalism. ‘The term instrumentaliem may be used for the belief that there is a certain causality between legislation and the social order. You need price control, you make an Act and thus you get price control. Reality, however, does not take that type of manipulation. Rather, legal systens thenselves tend to be subject to various forms and degrees of manipulation. (Lawyers, by the way, specialize in such manipulation in their clients’ interests.) In certain situations laws may even become largely irrelevant (non-law). Constitutional guarantees for the realization of human rights often fall into this category. This paper discusses the colonial context of law in the so-called developing countries. In the present chapter we shall examine the nature of colonial rule while paying specific attention to its political, social and economic aspects. Chapter 2 deals with the legal implications of colonial rule. In chapter 3 the colonial legal heritage will be traced in present manifestations of law and public policy. Here, we focus on Africa. Finally, some conclusions are drawn.1.2 Political domination Colonialism implied the extension of administration by @ (European) state to some far away territory elsewhere. It was based on conquest while resting on two pillars: maintenance of law and order and extraction of revenue out of the local economy (Killingray 1986, 411). Law, in a normative sense, attempts to bind power, both in its formation and in its execution, to at least a regularized way of dispute settlement. Conquest, however, just takes the form of imposing power on the vanguished. The ‘law’ which follows conquest is the law of the victor. As Xenophon put it in the classical Greek context: ‘It is a universal and eternal law that in a city taken during a war everything, including persons and property, belongs to the victor’ (Whittaker 1987, 8). But colonialism was a humane type of conquest, was it? Well, there were, of course, different degrees and ways of colonial exploitation. Not everywhere did colonial tyranny go as far as the Dutch ‘cultuurstelsel’ in ‘Bast India’ or the ‘cultures forcées’ in French central Africa, not to mention ‘red’ (rubber) slavery in the Belgian Congo. Perhaps one could even follow Kenneth Kaunda in his exclamation ‘if, by some way of providence, zambia was a nation that had to be colonized then thank God it was by the British’ (Kaunda 1960). But there vas one common factor: unfree labour (Rex 1962, 207). The colonial subjects, whether peasants, plantation workers or workers in the mines, were not regarded as a free and independent citizenry, in the full possession of their human rights. They were ‘other’, ‘natives’, not regarded as subjects (individuals) in a universal legal system, but rather as objects of a civilizing mission. The Enlightenment project ‘with its claims to exclusive nationality, to universality, comprehensiveness and consistency’, as Fitzpatrick has put it, ‘ean only relate to those excluded from the project through elavery or semi-slavery by saying that they are of a qualitatively different nature, or, simply, of nature’ (Fitzpatrick 1990, 97). A striking example of the way in which the colonized were placed beyond the liberal concept of universal freedom and equality provides the Dutch government's Second Police Action in 1948. For the Indonesian population human rights such as freedom of speech, assembly and association were severely restricted at the same moment when this government actively promoted the adoption of the Universal Declaration of Human Rights by the United Nations (K. von Benda Beckmann 1990, 225). Actually, this combination of liberalism and democratic3 thinking with exclusiviem is in line with the origins of liberal and democratic ideas in the classical slave societies. oppression could take both direct and more indirect forms. German and Belgian colonialism, for example, used rather crude ways of dealing with resistance, including corporal punishment of individuals as well as group punishment. The British ‘indirect rule’ and the French ‘l'association’ were based on the incorporation of local chiefs in colonial administration. As one expert in ‘Native administration’ put it: ‘Order is today largely secured by ‘the system by which the native community polices itself, in the sense that only the major types of crime are dealt with by the Government Police Force, which has usually a very small establishment, the great majority of offenders or breaches of law being dealt with through the agency of Native Authority Policy or Tribal Meesengere’ (quoted in Killingray 1986, 416). Naturally, the definition of breaches of law as well as the delimitation between major and minor offenses was the responsibility of the colonial government. 1.3 Social stratification Primarily the colonial social pyramid was of a racist nature. First came the officers of the ‘colonial service’: the Governor(-General), his District Commissioners and their assistants. They tried to convey an image of complete cultural superiority. Thus, even in a thinly spread administration law and order often could be maintained by simply ‘calling the bluff’ (Killingray 1986, 414). After the representatives of queen, king or president cane the white settlers. In countries with substantial settler communities public policy was geared to the well-being of the settler section (Bennet 1984, 123). Non- white settlers, such as the Asians in Africa, were relegated to secondary positions in public-political life. Through education, mainly at mise on schools, a local intelligentsia was created. There were clear limits, however, to the advancement of these people in colonial society. In the British case, where racism was of an open and notoriously arrogant nature, thie was self-evident. But the French policy of ‘assimilation’ had its practical limits, too, It should first be understood that this ‘assimilation’ was based on an unshakable French belief in the supremacy of their own culture. It meant the application of French legal and other procedures to indigenous subjects who, in this manner, could be more4 easily exploited, As for personal assimilation, the number of ‘natives’ whe were fully regarded as French nowhere exceeded a very tiny portion of the population. ‘Thus, by the outbreak of World War IT, the French concept of assimilation, however venerated in principle, had succeeded only in producing a very narrow elite capable of Living with and understanding French culture’ (Bennet 1984, 112). Nonetheless, this local elite, already alienated fron the rural masses, became the leadership of the anti-colonial movement. When, after 1945, a new service industry developed of bureaucrats they could move from their teaching jobs into the lower levels of administration. after independence they formed the new political class to which Raymond Dumont referred in his ‘L’Afrique noir est mal parti’ (Dumont 1962). 2.4 Economic exploitation ‘The economic penetration of colonialism was characterized by the following factors: a) Confiscation of land. Even where distinctions were made between Crown land and Native trust land (and/or Native reserves), there were in fact no Limits to economic control from the colonial centre. The urge to verity ‘customary law’ resulted in the legalization of adversarial tenancy systems by registering contentious feudal practices. Besides, land titles were given as rewards to cooperants, while dissidents were punished by robbing them of their titles (smith 1989). The general tendency was towards an individualization of titles together with a narrowing of duties. b) Relocation of population. People were generally regarded as not more than a labour commodity that could be shifted back and forth. In case of insurrection villages could be burnt and their inhabitants forcibly removed. c) Taxation. Head and poll or hut taxes imposed a duty to pay which enforced at least a partial commercialization of agriculture and/or migration of wage labour, By giving the male ‘head’ the duty to pay he was converted into a riarchal leader with powers to control production by ‘his’ family as well as movement and distribution.5 4) Commercialization. Colonialism created export-oriented enclaves in the midst of subsistence economies. Generally, subsistence production became totally subservient to the needs of export-oriented production. Intervention in traditional subsistence economies usually takes one of two different modes. In the first one, productivity is increased by commercializing the traditional crop in order to serve a market located outside the region, An example is the conmercialization of Sago in the Indonesian Moluccas (F. von Benda Beckmann 1990, 157-199). The second form of conmercialization attempts at replacing the subsistence crop with anther staple food commodity whose surpluses would be more easily marketable. one might think here of the substitution of maize for cassava (manioc) in East and central Africa, In both cases food security tends to be severely undermined. Commercialization increases vulnerability to drought and other natural hazards while decreasing access and destroying mechanisms for secondary distribution. The benefits of conmercialization did not usually go to the local population; it was the drawbacks that affected them most. e) Product substitution. Imports from the colonial centre were generally favoured to local products. A system of licensing laws and sales rights further contributed to the marginalization of traditional systems of production and distribution. Colonialism as a political, social and economic system also used law as a means to achieve its ends. The following chapter is devoted to the legal implications of colonial rule.II LEGAL SUBORDINATION 2.1 The leaislative process Colonialism built a legal pyramid in which the ‘natives’ found themselves Fight at the bottom. Legislation would usually come from the ‘Crown’. It could take many different legal forms such as, in the British case, Orders in council, charters, Letters Patent, Proclamations, Governor's Conmissions, Warrants and Instructions to Governors. In the latter a further distinction was made between Royal Instructions under the Royal Sign, Manual and Signet and Royal Instructions by dispatch or telegramme. Local legislative bodies were created only in those countries which, as a ‘native’ once put it, ‘did not have the blessing of the mosquito’ and hence had attracted a white settler comminity. If such a settler parliament passed a bill, the Governor could assent, refuse assent or ‘reserve the bill for Her Majesty’e pleasure’. An interesting case, requiring an interpretation of the Colonial Laws Validity Act, occurred when the Governor gave his assent in contradiction with an earlier ruling of the Crown. When it contradicted a Royal Instruction, it was still valid, but in cases of a prescription in Letter Patent or in Order in Council, the Governor's assent was void (Roberts-Wray 1963, 14). Obviously, the law resulting from such procedural prescriptions is rather far-renoved from ordinary people. They are bound to feel ‘that the law, Like the peace of God, passeth understanding’ (Rosenn 1971, 541). one is, indeed, reminded of the Roman Emperor Caligula who had hie laws and decrees posted so high above the ground that nobody could read them. Most people, however, lived in ‘outlying areas’, far removed from the colonial local centre. They were subjected to the rules of their chief, king or elders. They had what they called customary law. Colonial rule absolutized the power of the traditional functionaries. In societies with democratic and egalitarian traditions, checks and balances and sanctions against abuse ef power were replaced by ‘traditional’ authoritarianien. Listen, for example, to these words by a District Commissioner in Uganda in 1913: ‘opigi and his headmen must be supported at all coste at this present stage, or they will be unable to control their people. No decision by them should be reversed, if possible, even at the risk of occasional injustice. A little oppression even need not be a bad thing’ (quoted by Killingray 1986, 419).7 Multatulis Max Havelaar amply illustrates the collaboration of colonial officials and local chiefs in corruption, forced labour and authoritarian rule in Dutch East India (Multatuls 1860). The tranaformation of traditional chiefs into authoritarian rulers provides an illustration of what Fanon has called ‘double alienation’. First their systems of government, their customs and even their chiefs were taken away from the local population and then returned to them in a form adjusted to the needs of colonial authoritarian rule but with the pretence that these were their authentic traditional institutions. ‘so, with colonialism, existing social relations were taken, reconstituted in terms of its imperatives and then, as it were, given back to the people as their own. In this, history was denied - the colonized were to be brought into History - and ‘custom’ created instead’ (Fitzpatrick 1990, 100). In such processes of double alienation lie the roots for ‘indigenous authoritarianism’ (African Socialism, Zambian Humanism, etc.) after independence. To attain and perfect this double alienation, the prevailing laws had to be either subordinated or substituted. The changes which took place altered both the nature and functions of law. In the next few sections we shall look at these changes in a little more detail. sand rol Pre-colonial rules and roles in many African communities were flexible and their construction and application were influenced by consensus and adjustment to the contextual factors. Even the powers of the chief or king alleged to have been ‘absolute’ were not absolute in relation to traditionally accepted ways of life. These accepted ways of life or doing things were themselves not rigid but were determined by the extent to which they were acceptable and rational (Elias, 1962: 99). As Beatie has shown in relation to the inter- judicial system in East and Central Africa, judicial roles and rules in this region were very informal and flexible (Beatie 1969: 35). The reason for flexibility was the need to adjust law to the context and avoid legal concepts becoming abstract self-serving entities. Another reason as explained by Elias (1962: 67) in connection with Basuto law was the inseparability of law in Basuto jurisprudence from ‘morality, reasonableness and justice’ among people. Hence legal rules and roles were centered around human beings and their feelings and not concentrated in commodities and legal institutions.8 Colonial administrators failed to understand the social and political importance of flexibility. They found it incompatible with coercion and repression which were the quickest means of using the legal system to attain the colonial goals of exploitation. Hence the need to weaken these informal, seemingly lengthy and winding systems of arbitration based on peer groups, kinship cireles, neighbourhood councils and courts, village tribunals etc. as was noted by Beatie among the Banyoro of Uganda (Beatie, 1957: 188) and by Schapera among the Tswana (Schapera, 1938: 283); Whitfield: 1948:4; Elias 196 7). The same value systems seem to have equally influenced judicial systems among the Duer, Ibo and Kikuyu (Elias: 1962:118). Colonialism could not destroy these systems without creating a vacuum due to the fact that alternative systems of a European nature could succeed only in a completely Europeanized production and distribution structure. such a transformation was not only unattainable but inconsistent with the colonial mission. A process of subordination was therefore necessary. Through indirect rule, a limited set of customary laws and practices were retained provided of course they were not ‘repugnant’ to or in conflict with the principles of colonial justice. But the substance in which these procedures were exercised changed. statutory rules were passed to define how customary rules and roles would operate. The chiefs’ councils which traditionally exercised appellate jurisdiction as apex organisations of otherwise autonomous judicial bodies, were given unified supervisory jurisdiction as control organs and not as apex organisations. Judicial roles were assigned to chiefs’ councils with ultimate jurisdiction at community level but appellate power lying with the district commissioners. Customary tribunals included expert and non-expert community members. Colonial ‘native’ courts were institutionalized with adjudicators at the top, assessors at the middle, litigants and administrators at the bottom and community members as listeners or spectators. The spectators had no way of influencing the main actors or the judicial process. By elevating rules and roles above the community customs, customary law and the people were completely subordinated. Law and the judicial process, while retaining their traditional roots, were completely removed from the grassroots. In order to strengthen the process of subordination, customary rules were codified. This was aimed at making customary law more predictable and precise. As we shall see below, this was not necessarily in the interests of the colonized communities.2.3. Precision and predictability In most traditional customary law systems in Africa, settlement of disputes in court was an act of last resort. Tribunals and circles were the most effective institutions of dispute handling. Taking the Tswana as an example here, they regarded settlement of disputes in court as an unfortunate result of failure to agree (Schapera 1943). In some societies, for instance among the Wakikuyu, Wakamba and Wathenaka of Kenya, the chiefs’ courts were only used when the issues involved were so grievous that the chief had to intervene or where the people were so outraged by the wrong committed that they wanted to exercise instant justice. In some cases the alleged offender had a right to seek asylum in the chief’s court pending trial. Such a system of voluntary remand in custody or asylum pending trial was common in many other societies of Africa (Elias 1962: 216). Such systems did not demand unified or codified procedures and rules because of their flexibility and because the judicial system was relativistic and decentralized. This does not in any way imply that customary or traditional legal systems did not have their legislative mechanisms. A system of decrees by chiefs or their councils, proclamations and declarations by tribunals and courts, judicial review by appellate councils and even judicial reform commissions existed (Allot 1957; Danquah 1928; Elias 196: 191-207). Their distinctive features, however, were first, the concept of legal relativism based on the probability of many interpretations and the need to reach a compromise rather than an award. Secondly, they avoided being universalistic and self-serving institutions. While they had their own procedures on ratio decidendi and stare decisis, precedents existed as guides which could form a basia of departure and not as terminal determinants of existing legal rationality. The processes of colonial realignment of customary laws and their subordination entailed a few substantive changes in the letter and spirit of customary lava. First, they were institutionally subordinated and tied to the values of the colonizers. Their application was made permissive. They could apply only at the will of the colonial state and if they were not offensive to the European valu of equity and natural justice. The second important change was that they were invisibilized. In West Africa it was specifically decided in Bonsi v. Adjena (1940) and subsequently enshrined in the Supreme court Rules, that customary law, if relied on in any proceedings, had to be20 proved as matter of fact. In West Africa a series of cases confirming this position were decided. A few examples include Ademolla II v. Thomas, a 1946 Nigerian case, and the famous case of Anou v. Attah, (1916) in Ghana. In East Africa, subordination and invisibilization were attained more through the enforcement of the repugnancy clause. In a Malawian case of Limbani v. B (1946), a ‘native court’ found that Limbani was guilty of adultery and that in Nyasa customary law adultery was a criminal offence. Basing itself on European values, the court refused to accept the finding. In other words, even where the local court was sure that under its customs a certain wrong was a criminal offence, it still had to prove this as a point of fact and state courts had option to accept or reject the finding. But in some cases even vhere the rule offended or wont contrary to European values, European courts accepted rules in order to strengthen alliances with the chiefs and groups in power. This was clear in the case of Kigizi v. Lukiko of Buganda (1943). The appellant married the mother of the King of Buganda and the Buganda parliament brought action against him. The mother of the king was a widow and had consented to the marriage. By European values this was definitely normal. The Buganda parliament alleged it was against Buganda customary law and it was a criminal offence. Because here customary laws would be against European values of natural justice, one would expect that it were overruled by the European court. on the contrary, however, the latter held that in such situations, there was no need to depart from the findings of the ‘native court’. Similarly, it was easy for European courts to side with African courts where the former wanted a certain type of rule to disappear or to be changed. an example here is the Nigerian case of Ometa v. Numa (1945) where the Privy council refused to overturn a decision of a native court only because it was against the continuation of certain forms of tribal land tenure. A similar situation arose in East Africa in Kajubi v. Kabali (1944). The Buganda parliament in this case applied a modified rule of customary land law. Because the modification was in favour of new relations of land ownership, the East African Court of Appeal was quick to point out that it was not good for it to interfere with the finding of the lower court. More interesting was the refusal of European courts to invoke the so-called ‘repugnancy clause’ against rules they categorized as ‘barbarous’ if they wanted those rules to be used in their favour. In the famous Nigerian case of Eleko v. officer Administering the Government of Nigeria (1931), the colonial court wasan considering the customs used to remove a chief. Because they wanted the chief in this case to be removed, they supported the customary practice of banishing chiefs. Although they considered it againet principles of natural justice, they accepted this ‘barbarous’ practice on the ground that it was recognized by the community. The judge said, ++ + the more barbarous customs of earlier days (eg, to kill, and not to banish, a deposed chief) may under the influence of civilization become milder without losing their essential character of custom. It would, however, appear to be necessary to show that in their milder form they are still recognized in the native community as custom, so as in that form to regulate the relations of the native community inter se. In other words, the court cannot itself transform a barbarous custom into @ milder one. If it still stands in its barbarous character it must be rejected as repugnant to ‘natural justice, equity and good conscience’. It is the assent of the native community that ives cust vali. a ald, i must be shown to be recognized by the native community whose conduct it is supposed to reaulate. (Emphasis ours.) This refusal to apply the repugnancy clause even in situations where rules were alleged to be ‘barbarous’ was not due to the recognition or acceptability of these rules to the local communities but to the dominant interests served by the colonial judicial systems. That is why in the East African rules of evidence, African marriages celebrated under customary laws were not recognized as marriages under which communication between spouses could not be made bases of evidence in criminal prosecutions on grounds of privilege. The argument in R. v. Amkeyo (1921) was that such marriages were not marriages as known in civilized society. The institution of bride price was referred to as ‘wife-purchase’ even though these customs were not only accepted but rooted in their history and culture. ‘The following lessons can be drawn from these developments. First, the rules of ascertainment of customary law transferred the power of interpretation from the local communities to the colonial courts and administrative institutions. Secondly, the colonial governments gave themselves a leeway to select in which situations to recognize and use customary law rules to intreduce new relations of power and production. Third, by requiring customary law to be specifically pleaded as a fact, they made customary law an issue of fact and paved the way for its ultimate erosion and disappearance.22 2.4 The role of sanctions colonial relations were not intended and did not pretend to be cordial and accommodative. They were directly conflictual, coercive and exclusive of any elements which were antagonistic to their survival. Legal subordination could therefore not be built on the foundations of harmony, complementarity, relativiem, etc. which characterised methods of social control and rehabilitation in many indigenous systems. Although there is no room for generalizations on these aspects, records show that systems of sanctions in African traditional systems were based on religious or what the colonial anthropologists referred to as ‘magical’ methods of social control, withdrawal of recognition and support, boycott and ostracism and ridicule of the offenders (Elias 1962: 64-65). Most of these sanctions were both psychological and economic and their effectiveness depended on the way society was organized. The extended family, community belonging, mutual aid and support, collectivity and complementarity along which society's production and distribution were organized, provided room for these sanctions 30). to be effective as deterrent and punitive measures (Culwick 194 Withdrawal of social affection, acceptability and recognition in such a system based on sharing, caring and interlocking family, personal and community production and distribution relations were more effective than solitary confinement, monetary fines or temporary loss of liberty. Rules were obeyed not because of fear of supernatural powers or spiritual visitation as Major Orde-Broun once commented (Orde-Brown 1933: 151-2). Tt was much more the fear that existence which depended on social solidarity, mutual aid and community belonging was threatened and that wounds once inflicted by or upon eociety by deviation from the norm would take long to heal. The most significant feature of sanctions in this respect is that they were imposed by the community as a whole and the community took responsibility for making them effective. The system did not depend on constables or officers of justice to carry out the punishment. The enforcement of decrees was a community function. In the case of serious crimes such as witchcraft, grievous assault, murder and treason, harsher systems of punishment existed. Among the Haya of North-West Tanzania physical torture through use of strings tied tightly around the head or bending a middle finger backwards, or tying hands backwards were used to extract confessions (Cory and Hartnoll 1945: 236-8).13 Alleged witches were subjected to ordeals through which culpability was determined. Among the Banyoro, hard core criminals were usually put in wooden stocks and their movenents restricted for a whole day or a night, a practice noted among the Haya, Sukuma and Baganda in East Africa (cory and Hartnell 1945: 237; Cory 1953: 10). Mutilation, executions, banishnent, temporary exile and reparations for damage to individuals or conmunities were common in all African societies (Elias 1962: 73-74; Meek 1937: 323; Rattray 192 378). one has to note, however, that apecific proct jes were important in the imposition and execution of sanctions. offences were treated as being against society and this made society eager to see to it that justice was carried out. Society had to be in agreement that objectively an offence had been committed in order to be part and parcel of the enforcement mechanism. Hence offences had to be accepted as such by the broad comunity, otherwise enforcenent was impossible. Interdependence was necessary to support such a system. Otherwise psychological, social and economic sanctions would fail to work. For example, if status and recognition were not crucial in a community, they could not be withdrawn or if withdrawn they could not have the desired effect of helplessness and hopelessness on the offender. Among the Nandi, being disowned was considered a very severe punishment (Snell 1954: 84), while among many Ashantis, death was preferred to disgrace (Rattray 1929: 372). Another crucial factor was that of collective responsibility on the part of society in the enforcement of sanctions. Blood and kinship ties were not a barrier to the enforcement of sanctions among relatives. Social solidarity was the driving force. Finally, it was on very rare occasions that an individual was removed from society as a punishment. Banishnent, exile and execution were mainly for crimes which were considered outrageous. Normally a person was punished while residing in society. Probation, rehabilitation and punishnent were al) carried out simultaneously. colonialism did not find value in continuing such systems. The reasons for this were many. First, such a system was regarded as backward and primitive. Secondly, it demanded a decentralized structure in which the culture and norms of the society would have a role in law enforcement. with all the pretences of indirect rule in many African colonies, decentralization of power and control were not conducive to effective colonization. Third, social and psychological sanctions were not going to help in the process of commoditization. Fines payable in monetary currency were necessary not only4 to accelerate the demand for cash and cash earning activities among colonial subjects but also to make them contribute to the funds necessary to run the machinery of their own oppression. Correction and rehabilitation based within the communities was not conducive to the colonial needs of prison labour for purposes of public works and prisons as institutions for the integration of offenders by coercion and humiliation into the power structure of the colonial state. However, the introduction of fines and severance from the community as a way of punishment changed the whole concept of crime and punishment. Instead of being instruments of repentance, social cohesion and retribution, they had a cleansing effect, operating as quasi-licenses for previous wrongs and by being fulfilled, they had the effect of remedying a wrong. In African legal systems both the wrongdoer and the community took long to forget about wrongs, issues could be heard over and over again, without necessarily leading to retrial or repayment of reparations. The aim in all cases was reconciliation, deterrence and rehabilitation without unnecessary hardships on the part of the wrongdoers or the community. The indirect licensing of crime and the requirement that after punishment is imposed the crime should be forgotten, greatly undermined the objectives and functions of law in traditional society.1s III EUROPEAN LAW IN AN AFRICAN WORLD In colonial processes of double alienation lie the roots of indigenous authoritarianism as this manifested itself after independence. A living testimony is His Excellency the Life President of Malawi who appears in public as an old-fashioned British gentleman adorned with a Chief's stick and a flywhisk. Here, at last, is the native Governor. One would be mistaken, however, to think that his power rested on respect for tradition in general and for the Chief in particular. His one-party rule is based on the oppressive mechanisms of the modern state including a ‘special branch’ of secret police. Another example of double alienation was Tanzania’s Ujamaa policy which forcibly removed people from their villages in their own ‘Ujamaa’ (familyhood) tradition. Even the term ‘native’ is not yet out of use. A striking example is the Tanzanian cage of the Mulbadaw Village Council and others versus National Agricultural and Food Corporation (NAFCO) (Civil Appeal no. 3 of 1985, Appeal court of Tanzania). The people of Mulbadaw, who are primarily Barbaig herdsmen, Live together as one community. when the country began its ‘rural transformation policy’ in 1967 Mulbadaw became an ‘Ujamaa village’. It was officially registered under the Village and Ujamaa Village Establishment and Registration Act of 1975. (This Act has been repealed by the 1982 Local Authorities Ret.) Problems started when the government-owned NAFCO was granted Canadian financial aseistance to establish wheat farms in Tanzania. Tt chose low-lying land in the Rift valley: the Kartesh area. This land is rich enough to sustain wheat growing on an extensive basis but its thinness would reduce it to a dust bowl. NAFCO alienated lands around Kartesh belonging to Mulbadaw village. It did not use the land acquisition procedures of the Land Acquisition Act of 1967 which provides for acquisition of land held under customary tenure. ‘These provisions demand proper procedures (including demonstration of the ‘public purpose’ of acquisition) as well as compensation and an offer of alternative land to the victims of acquisition. In bypassing the Land Acquisition Act NAFCO first denied a collective title to the land by the Village Council. This argument implies that the villagers were required te prove their customary titles individually. In16 Line with the Land Ordinance of 1925 (sic!) thie means that each and every one of them has to prove that she or he is a ‘native’. A ‘native’, according to this specimen of colonial law, is an African, which excludes Somalis. Now unfortunately for them the Barbaig people look like Somalis. on the basis of their appearance, the Tanzania Appeal Court denied them a ‘native’ identity while not giving them the opportunity to produce evidence to the contrary. ‘This astonishing case now enables us to summarize the consequences of a false start in development in terms of its legal consequences. The legal system became: a) Alien. Through an individualisation of rights and liabilities together with a depersonalization of the legal system and separation of substantive rights from procedures, as rooted in the communities, there is a huge gap now between law and culture. b) Inaccessible. The new law relies on professional jurists not involved in the dispute, It demands a lot of paper work as well as payment of money. Indeed, if it were not for the legal aid offered to them by university lawyers, the people of Mulbadaw village could never have brought their case to court. cc) Constructed. A universal legal system is based on the construction of rules. Its application is of the ‘if ... then’ type, as opposed to the ‘as... therefore’ approach of traditional modes of dispute settlement (F. Von Benda-Beckmann 79). The question is always whether there is a consensus in society that can live with the fiction. If not, the enforcement mechanism will become oppressive or the law will remain a dead letter. What then was the legal heritage of colonialism at the time of independence? There was a legal system of administration which was not only technical but alien, a system of law-making highly dependent on the skills of legal draughtemen and a ayetem of dispute settlement that was rather inaccessible to the rural and urban masses. At the same time the new local elite that had come to power possessed a remarkable confidence in the effectiveness of the inherited system of law-making, administration and dispute settlement. Thus, independence was generally not followed by a movement for legal reform but rather by a euphoria of new laws, aiming at rapid change. Politicians with their economic experts devised new policies, and it was up to the legal experts to incorporate these in the form of bills and decrees.vy As was amply demonstrated in the previous chapter, colonialism was not set up as a system for nation-building and development. The new legislation, however, did aim at these objectives, but the law which this produced usually was not effective. Development was and generally still is hindered by a very technical, bureaucratic and alien legal system, while the role of law in development is both underestimated and overestimated. It is underestimated in the neglect of traditional law as a manifestation of communal search for security. It is overestimated in the sense that modern state law is regarded as a principal - if not exclusive - instrument of social change. We shall now look at the systematic background of modern manifestations of the colonial legal legacy. 3.1 Independence with ‘continuity’ Most colonies gained independence at the beginning of a new world order. That order began taking shape in the late fifties when international capitaliem became so integrated that free trade broke the traditional boundaries of colonial domain. The rise of multinational enterprises with interlocking transnational capital and power structures, made irrelevant the need for one colonial power to foot the costs of otherwise shared benefits of colonial exploitation. With the Treaty of Rome in 1957 and the rise of multilateralism in Europe, it was crystal clear that international relations of trade and investment were going to abandon structures based on formal colonialism. The rise of the US as a new economic power without colonies seemed to show that accumulation on a global scale did not require territorial monopoly of dominated economies. The successful rebellions in China in 1949 and Cuba in 1959, were clear testimony that prolonged conflictual paradigns of global domination were going to expand the size of the communist bloc. Besides, colonization by association and partnership was beginning to bear fruit in Latin America and South East Asia, areas which had severed political colonial links with former colonizers for decades. The @irect ‘domination’ paradign of colonialism was quickly losing viability, attraction and touch with reality. These developments had two principal implications for Africa. First, the decolonization and future development profile of Africa had to be as peaceful as possible and to continue rather than destroy the colonial order. Secondly, development strategies had to open up Africa for further linkage18 and subordination and avoid delinkage or insulation from the main currents of the emerging world order based on collective domination by the advanced countries and association, alliance and partnership between them and the newly independent countries. such partnership could succeed faster if norms and institutions of power, production, distribution and consciousness were similar in both spheres and if the culture and organisational structures were related. In the early sixties therefore, a process of modernisation began whose goal was to uplift the norms and institutions of African countries to the level where they could operate in harmony with those of dominant western systems. This demand for modernisation created room for the continuation of Gouble alienation. This alienation has been characterized by the increased professionalisation of law and judicial processes, excessive faith in the use of law to stimulate new social relations, the prevalence of the ideology of developmentalism and state intervention, and overreliance on western models of human and natural resources development. 3.2 Modernisation and professionalisation Alienation and deprivation always have the potential to create false demands and distorted needs. Just like restrictions on drinking tend to make drink attractive to adolescents or give them an impression that drinking is a sign of maturity, many deprived people normally find their needs reactive to the system of their deprivation. During the colonial period, colonial agents, settlers and privileged groups used their political power to allocate to thenselves the best services, amenities and incomes. The colonized found thenselves at the bottom of the distribution pyramid. This had the impact of linking deprivation on the one hand with access to the best facilities and amenities on the other. At independence it was almost unquestionable that the independent governments should undo what the ancien regimes had done. A demand was unmistakable that independence should provide access to what Seidman has called ‘all the good things which western civilization has produced’ (Seidman 1968: 22). We shall see the impact of this later when we @iscuss law and developmentalism. In the case of legal services, colonialism limited the access of local people to legal services and the legal profession. The colonial court system was a highly segmented one with European and African systems of adjudication and appeals. Most of the courte in which customary lawe applied, were notPr allowed to operate with the help of advocates, their procedures were simplified and their appeals led to administrative tribunals or authorities (Allot 1962). The main objectives of this system were first, to make the decisions of lower courts as weak as possible in order to justify their decisions being subjected to review by administrative action (district commissioners or the governor in council). Secondly, by limiting the participation of lawyers in African courts it was easy to accelerate the development of adversary systems of property ownership which operated in favour of powerful clans and groups with whom the colonial system was allied. But third and perhaps most important, the irrelevance of advocates in African courts reduced the need for Africana to train as lawyers. Another method used by the colonial systems to keep Africans out of the legal profession was the exclusion of advocates from certain types of Litigation, especially in marriage and land cases. In East Africa it was not until in the 1940s that issues of land occupied by Africans could be entertained with help of advocates. By excluding advocates, most cases involving Africans were unrepresented and because the magistrates were trained in the legal tradition, a let of injustices prevailed (chai 1981: 153). This exclusion of Africans and the miscarriage of justice that accompanied it created an artificial demand for professional legal services after independence. In Tanzania for example, the ruling party donated its own building to house the law faculty which was the first university faculty to be established in Tanzania. In order to produce ite own lawyers the government hastened to enter into agreement with the University of London which agreed to train and produce lawyers in Tanzania within a maximum period of three years. Dar es Salaam quickly became centre for producing lawyers for the whole of East Africa. It is important to note here that for East Africa the demand for legal services was generated by the colonial segregation of African court systens but also that in curing this imbalance, the importation of faculty from the University of London to Dar es Salaam was deemed necessary. As most of the teachers who were part of this programme have pointed out, they had little if any experiences of Africa or African systems; they came out of England because they believed the law there had lost touch with the realities of life and practice but on arrival in Dar es Salaam, they had no other law but this fone to rely on. Most of them felt out of place or as one of them put it, they felt trapped (Twining 1986: 22-3). They felt themselves victime of