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‘CHANGING TRADITIONS TO MEET CURRENT ALTERING CONDITIONS’: CUSTOMARY LAW, AFRICAN COURTS AND THE REJECTION OF CODIFICATION IN KENYA, 1930–60

Published online by Cambridge University Press:  01 November 1999

BRETT L. SHADLE
Affiliation:
Northwestern University

Abstract

If the aim of British colonizers, Frederick Lugard wrote, was to civilize Africans ‘and to devote thought to those matters which…most intimately affect their daily life and happiness, there are few of greater importance than the constitution of native courts’. Moreover, he argued that only from native courts employing customary law was it ‘possible to create rudiments of law and order, to inculcate a sense of responsibility, and evolve among a primitive community some sense of discipline and respect for authority’. Britain had not the manpower, the money nor the mettle to rule by force of arms alone. Essentially, in order to make colonial rule work with only a ‘thin white line’ of European administrators, African ideas of custom and of law had to be incorporated into the new state systems. In a very real way, customary law and African courts provided the ideological and financial underpinnings for European colonial rule.

In Kenya from at least the 1920s, but especially in the 1940s and 1950s, administrators struggled with the question of how customary law could best be used in African courts. Prominent among their concerns was the codification of customary law, against which most administrators vigorously fought. British officials believed that reducing African custom to written law and placing it in a code would ‘crystalize’ it, altering its fundamentally fluid or evolutionary nature. Colonizers naturally harbored intentions of using the law to shape society (as Cooper has demonstrated for the Kenya coast) but a fluid, unwritten law provided much greater latitude to pursue these goals. It was necessary, as one administrator put it, to allow ‘changing traditions to meet current altering conditions’.

This case study of Kenya offers a different understanding of the history of customary law.

Type
Negotiating Law in French and British Africa
Copyright
© 1999 Cambridge University Press

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Footnotes

The research on which this paper is based was funded by an NSEP 1997–8 fellowship (funding research in Kenya) and a Northwestern University Dissertation Year Grant (funding research in Great Britain). I wish to thank the Office of the President, Government of Kenya, for authorizing my research and the Department of History at the University of Nairobi for my affiliation there. My thanks also to Jonathon Glassman, Rebecca Sheriekis, members of the History Department Brown Bag Seminar at Northwestern University, and the anonymous JAH reviewers for their comments on earlier versions of this paper.