Federal Pan-Africanism

To take the historical institutions of East African law seriously, it is important to first ground them in the ideological world of federal Pan-Africanism that made them possible. The political possibility of the Court of Appeal and the University of Dar es Salaam was an outgrowth of politicians, scholars, citizens, and even some lawyers understanding law as an imperial bond that could be utilized and restated as an iteration of formal Pan-Africanism and postcolonial integration. Reshaped from a colonial antecedent, the court’s continued existence was a direct outcome of Pan-African discourses and a demonstration of what Adom Getachew has theorized as post-imperial worldmaking—the pursuit at the moment of decolonization of path-breaking politics which enabled and relied on atypical political forms.Footnote ¹² The argument here is not that the early justices of the EACA were committed Pan-Africanists or that the federal Pan-Africanists saw either the EACA or UDSM as the primary goals of Pan-African liberation. Rather, despite its deep and obvious colonial roots, the regional legal world of the EACA and UDSM was only possible after independence because of radical political currents in East Africa. Though the eventual realization of these political currents in law paled in comparison to their initial ambitions, the Court of Appeal and UDSM were extant and influential projects (in contrast to many of the other ambitious aspirations of leading mid-century Pan-Africanists).

For proponents of regional integration, including the first Tanzanian president Julius Nyerere, projects of regional federation were a partial tangible realization of Pan-Africanism, despite their obvious imperial inheritances. While some Pan-Africanist theorists, including Kwame Nkrumah, argued for the necessity of simultaneous African integration at the continental level, a contingent of Pan-Africanist thinkers in East Africa argued for regional integration as historically progressive.Footnote ¹³ As the leading proponent of this intermediate federal vision, Nyerere recognized the colonial origins of federation and acknowledged the colonial support for integration, which led critics to call him a “stooge of the British.”Footnote ¹⁴ Alongside allies like Tom Mboya, he nonetheless argued that, rather than advance imperial interests, a federation would give East Africans a stronger position from which to resist the continuation of British hegemony in the region and “end the humiliation of colonial rule.”Footnote ¹⁵

In personal correspondence between Nkrumah and Nyerere in 1963 that was shared with the other national leaders of East Africa, Nkrumah expressed concern about the possibility that regional integration would hinder continental integration and cautioned that all African leaders must ensure they did not “consign the hopes and expectations of Africa’s teeming millions to fires of failure and frustration.”Footnote ¹⁶ In response, Nyerere argued that failing to regionally integrate in order to foster continental integration would be like “refusing to travel from Dar es Salaam to Addis Ababa because we do not yet have a plane which can take me to the moon.”Footnote ¹⁷ Pushing back on the idea that surrendering national sovereignty to federal institutions would weaken African nations and strengthen British influence, Nyerere further argued that the “time has passed” during which British preferences would shape their decision and that it was time for African leaders “to realize unity has a price and that price is the surrender of the sovereignty by the smaller units to the larger.”Footnote ¹⁸

These debates around Pan-Africanism were not merely an academic exercise; they were live political questions that shaped governing institutions. Disagreements between Nyerere and Nkrumah about regional federation repeatedly bubbled up at the earliest meetings of the Organisation of African Unity in 1963 and 1964, to the displeasure of allies like Malcolm X.Footnote ¹⁹ Locally, the theoretical question of Pan-African federation directly informed the realization of East African nations’ sovereignty. While negotiating decolonization, Nyerere repeatedly and publicly entertained the idea of postponing Tanganyikan independence to better facilitate East African unity.Footnote ²⁰ The leaders of Uganda and Kenya did not unanimously match Nyerere’s enthusiasm, but they explicitly supported the possibility of federation early on and proudly self-identified as Pan-Africanists.Footnote ²¹ These national leaders were, in turn, only the tip of a larger cohort of early independence political figures invested in the possibility of Pan-Africanism. In 1962 at Makerere University, the local training ground for the first generation of East Africa’s post-independence political and intellectual elite, over 2/3rds of student identified as a Pan-Africanists. As even one critic among the cohort noted “Pan-Africanism will be an important point in the creation of this federation for the simple reason that the prime movers at present are Pan-Africanist to the core.”Footnote ²²

Pan-Africanism’s Federal Court

In the early years of decolonization, East African federal Pan-Africanists found some success in building these ideological and political bonds into formal structures. In 1961, the East African Common Services Organization (EASCO) agreement vested paramount power in the Common Services Authority and transferred power from the all-white governors who had previously controlled transnational bodies to the primary African leader of each country at the time, before Uganda or Kenya had even achieved formal independence.Footnote ²³ Within this system, the EACA became the Court of Appeal for East Africa, a “new” court of final appeal for all of East Africa for civil and criminal matters, with nations continuing to follow separate national laws. The EACA officially ceased to operate as a British court in 1962.Footnote ²⁴ Local and foreign observers noted with particular fanfare that when sworn in, judges pledged allegiance not to the British crown or even an individual nation but rather to the service of “all manner of people” and the notion of legal justice itself.Footnote ²⁵ This transformation occurred despite active neocolonial attempts by British jurists and legal thinkers to transform the Judicial Committee of the Privy Council, including the EACA, into a Commonwealth Court that would continue to decide cases and thus create law in former colonies.Footnote ²⁶

The decision to keep the EACA while divesting from the JCPC was both an ideological project and a practical decision about the cost of creating separate appeals courts. As a later 1965 Tanzanian committee on federal unification acknowledged “no possible justification for the dissolution of the East African Court of Appeal” (EACA) largely because of the costs saved.Footnote ²⁷ However, the court’s continuation was also an active recognition of the EACA’s potential as a Pan-African institution. As both Ellen R. Feingold and Jessica Widener have documented in their work on the Tanzanian High Court, East African countries also engaged in parallel projects of law building through national judiciaries, which did not have to be subordinated to a regional framework.Footnote ²⁸ Each East African nation could have designated its own national high court as the highest court of appeal and pursued the project of judicial lawmaking separate from its neighbors. In the face of this possible fragmentation, it was a matter of clear consensus at early negotiations among national delegations on a federal constitution that, despite several other disagreements, “the Judiciary should become a Federal Responsibility.”Footnote ²⁹

The Pan-African foundation of the Court of Appeal was also demonstrated by early attempts to expand its international jurisdiction. In November 1962, Somalia and Ethiopia attended meetings to explore integration into an East African Federation, and in 1963 court officials continued a series of discussions with Burundi, Malawi, and Zambia explicitly about joining the jurisdiction of the EACA.Footnote ³⁰ Neither expansion of the federal project materialized at the time, but the integration of the second set of nations seemed likely enough in the early months of 1964 that the court pre-emptively increased its typical size of four to five justices to seven in anticipation of the larger caseload.Footnote ³¹ The provisions were in line with guidance from the Kenyan Attorney General’s Office to the regional negotiators for federation that in order for the federation to serve its role as “the beginning of a greater African unity” it should “leave the door open for other nations or states to join at a later stage.”Footnote ³² While abortive, these attempts at expansion demonstrate both that federation was understood internationally as a political project with room for expansion and that the EACA was an attractive institution within that project.

In this atmosphere of post-national integration, federation seemed imminent to outside commentators like Jane Banfield, as the culmination of “Pan-African movements and organization” which “created a sense of unity of purpose.”Footnote ³³ In June 1963, the heads of state for the three nations, Obote, Nyerere, and Kenyatta, met to discuss the path toward implementing regional unity and released a statement which began: “We, the leaders of the people and governments of East Africa… pledge ourselves to the political federation of East Africa. Our meeting today is motivated by the spirit of Pan-Africanism, and not by mere selfish regional interests.”Footnote ³⁴ Despite these lofty claims, it was not until 1967 that the unfulfilled promise of federation received some partial resolution with the Treaty for East African Co-Operation and creation of the East African Community (EAC) following the Commission’s recommendations.Footnote ³⁵

Though complete formal federation was never fully achieved, pundits, academics, and policy-makers continued to write and speak about the EACA’s contributions to regional integration in laudatory terms. In Thomas M. Franck’s 1964 appraisal of East African federation for the American Society of International Law, he described the court as “a triumph of legal and political inventiveness and flexibility,” which gave legitimacy to the project of federation.Footnote ³⁶ Highlighting the continued importance of the court as a unifying institution, the President of Kenya’s Law Society lauded the EACA’s Chief Justice Charles Newbold’s “relentless efforts to instill an East African identity,” when Newbold retired in 1970.Footnote ³⁷ Similarity, writing in 1971, UDSM professor L.L. Kato stated that the “future of the Court [was] bright” in part because of the “general desire for unity” in East Africa.Footnote ³⁸ As John W. Katende and eventual Ugandan Supreme Court Justice George W. Kanyeihamba argued in 1973, while the continuation of the court might have been informed by “administrative expediency” its power and jurisdiction were the result of collective “political motivation.”Footnote ³⁹ Ghana’s Chief Justice Samuel Azu Crabbe went even further in 1973, when, inspired by his experience as a justice on EACA, he called for the re-institution of the West African Court of Appeal in the name of greater African unity.Footnote ⁴⁰

As Crabbe’s comments suggest, despite the singularly East African foundations of the court, the exceptionally small legal community of East Africa meant the actual justices came from across the international community of common law, highlighting the material limits on realizing any anti-colonial vision of law.Footnote ⁴¹ It was not until 1970 that Ben Lutta, the former counsel for the EAC, was appointed as the first East African on the EACA, and only in 1975 did Samuel Wambuzi become the first East African chair of the court.Footnote ⁴² When two African justices were appointed to the court in 1970, Nyerere noted he hoped it would “prove to the world we can manage our own affairs.”Footnote ⁴³ This combination of colonial, foreign, and local judges was largely representative of the senior ranks of the East African judiciary. In Tanzania, for example, through the late sixties, the High Court was comprised of “approximately one-third former colonial judges and magistrates, one-third foreign judges, and one-third local Asian and African judges.”Footnote ⁴⁴ Kenya, the primary home of the EACA, lagged even further behind in the Africanisation of the bench, in part because of the larger population of white settlers.Footnote ⁴⁵ By the time the EACA dissolved, three of the four justices were East African, but even these justices were products of the earliest generation of East African lawyers and shared a certain cosmopolitan background with their expatriate colleagues.Footnote ⁴⁶ The judicial impact of this composition was contested; some observers speculated foreign justices worried they lacked local legitimacy, while others concluded that local justices felt pressured to avoid angering their home governments.Footnote ⁴⁷ Both arguments contained a kernel of truth, and it was partially because of the political precarity of the court and its justices that the more adventurous legal reasoning in East Africa emerged from the academy.

More than any individual motivations, the series of partial victories and half moves that left the EACA one of the few political fruits of East Africa’s federal Pan-Africanism, also lent the court a contradictory jurisprudential legacy. The Court gestated a large transnational body of law while failing to further develop the conditions that made its existence possible. Given the limited realization of legal integration among its member states, the EACA’s decisions were broadly adjudications of law within individual countries’ legal codes that decided precedent for all the countries in so far as the questions involved were a matter of shared law.Footnote ⁴⁸ All three member nations passed limits on the court’s ability to interpret their national constitutions, which the court did not rigorously abide by but did further restrict its room for legal maneuvering.Footnote ⁴⁹ Despite any restrictions, the court settled questions of international interest on murder, rent, marriage, and even the legal standing of the East African Community—to the noted interest of legal practitioners and commentators.Footnote ⁵⁰ The court additionally adjudicated questions of immense political importance for all three constituent nations across the duration of its existence including criminal cases against Kenyan Members of Parliament, the application of habeas corpus in Uganda for imprisoned former ministers, and the prosecution of Tanzanian political leaders accused of attempting a coup.Footnote ⁵¹ Deciding these cases was not without risk for the court Tanzania responded to the EACA’s 1971 decision to acquit three of six Tanzanians previously convicted of treason by passing a bill barring the court from reviewing questions of treason or mutiny.Footnote ⁵²

Beyond these exceptional cases, petitioners concerned with more immediate or just mundane matters of law, were likely disinterested in the fact that their case contributed to building a transnational legal corpus or that the court that heard their appeal was an almost unique transformation of a colonial institution into a post-independence body of sovereign international law. The court itself seemed similarly uninterested in its novel function and role as more populist visions of law circulated in East Africa. Speaking to a law conference in August 1970 in Kampala, the EACA’s former registrar Francis Gaffa noted that even though the court was “unique… in the whole of the African continent,” it needed to be “more involved in the aspirations of the common man.”Footnote ⁵³ Further from the court’s direct influence, more radical versions of this critique emerge. In a memo circulated within the governing party of Tanzania in 1967, party theorists argued that the existing law was “bourgeois in essence,” the judiciary was “by-and-large…an isolated institution,” judges “apart from their court work” were “unhappily cut off from many institutions in society,” and it was time that serious attention was paid to examining the “law and the machinery through which it [was] administered” in light of the nation’s recent expanded commitment to socialism.Footnote ⁵⁴ Not unlike many of the national courts set up across the continent in the wake of formal independence, the court’s structure as an articulation of law by existing elites left it ill-equipped to ambitiously advance the anti-colonial politics that made its existence possible.

If the EACA appeared unable to realize or even interrogate the more radical horizons of East African law, such questions received much greater attention at the University of East Africa (UEA), another institution that grew from the partial integration of East Africa.Footnote ⁵⁵ While the EACA remained a largely unadventurous institution, the UEA became a home for increasingly radical legal theory. Established in June 1963 at the height of federal possibility, the UEA was intended to serve as a regional consortium of the institutions now known as Makerere University in Uganda, the University of Nairobi in Kenya, and the University of Dar es Salaam (UDSM) in Tanzania.Footnote ⁵⁶ At the time of the University’s creation as a single entity, Makerere had granted university degrees in partnership with the University of London for 10 years, the University of Nairobi had existed as technical college for four, and the University of Dar es Salaam was not yet a fully realized school, having been only partially founded in 1961 as a faculty of law under the umbrella of Makerere University.Footnote ⁵⁷ Under the East African University system, professional faculties were particularized across the region, and UDSM continued to specialize in law.Footnote ⁵⁸ The UEA system was explicitly a project and product of federalism and Pan-Africanism, and the UDSM School of Law would evolve into a partner institution with the EACA in the creation of East African law. As one of the founding members of the UDSM faculty would later quip, the East African “legal establishment then [was] not just Africanised,” it was “Dar es Salaamised.”Footnote ⁵⁹

Institutions of ‘Dar es Salaamised’ Law

The early importance of UDSM as a source of legal formation stemmed most simply from the fact that, at the outset of independence, there were almost no African lawyers in East Africa. In 1960, of the over 300 “qualified lawyers” in Kenya, fewer than 10 were African, in Uganda of 150 lawyers 20 were African, and in all of Tanzania, only 1 out of 100 total lawyers was African.Footnote ⁶⁰ This was exceptionally low even by British colonial standards; anglophone West Africa had over 1,300 African lawyers, with more than 700 in Nigeria alone.Footnote ⁶¹ By this point, the British government had shifted from primarily seeing African lawyers as a nettle in the side of empire, to understanding them as procurers of stability and inheritors of the common law tradition.Footnote ⁶² In 1960, the Committee on Legal Education for Students from Africa led by Lord Denning—arguably the most influential British jurist of the 20th century—sought to understand the necessary steps for creating “education in Africa of local inhabitants seeking a legal qualification.”Footnote ⁶³

After a tour of common law countries and a series of interviews with judges, academics, and jurists, the Denning Committee concluded that it was necessary to “train up Africans to take their proper part in the administration of justice.”Footnote ⁶⁴ Some East African legal Marxists posited that East Africa lacked a solidified bourgeoisie and that building a localized legal apparatus was part of British efforts to create a palatable governing class.Footnote ⁶⁵ Left-liberal contemporaries argued that the introduction of lawyers was intended to generate a new body of “social engineers.”Footnote ⁶⁶ Following either line, the Denning Committee had mixed success. One of the committee’s primary recommendations was the creation of a school of law for East Africa in Dar es Salaam. While the Committee initially suggested that the school’s earliest graduates would not practice until 1968, only 10 months later, in October 1961, a faculty had been assembled to teach the initial class of 14 students.Footnote ⁶⁷

In the early years of independence, the small pond of East African law led to important overlaps between the EACA and UDSM. Several of the members of the Denning commission had previously served on the EACA as associate justices, Vice Presidents, and even as President.Footnote ⁶⁸ Kenneth O’Connor, the current President of the Court of Appeal for Eastern Africa at the time, both submitted a memorandum for the commission to review and was one of a handful of individuals directly interviewed by Lord Denning.Footnote ⁶⁹As the British scholar A.N. Allott noted in 1960, it was widely understood that the Court of Appeal would be “undoubtedly a further unifying factor” for legal education in East Africa.Footnote ⁷⁰ In August 1961, just before the first semester of the UDSM, the President of the EACA presided over a conference in Nairobi where it was agreed that university education would play a reciprocal role across East Africa in certifying a lawyer.Footnote ⁷¹ In a speech at the opening of UDSM, Julius Nyerere advocated for a generative relationship between academics and justices, arguing that “our lawyers and our Judiciary must, in other words, not only appreciate that law is paramount in our society, they must also understand the philosophy of that law.”Footnote ⁷² As the two institutions developed along parallel trajectories, academics at UDSM created a body of legal scholarship that merged with EACA jurisprudence to create East African law.

Occasionally, scholarship from academics at UDSM even explicitly changed the EACA’s entire body of precedent on an issue. The most notable example of this tendency occurred almost a decade into UDSM’s existence in a decision about the notion of precedent itself, Govindji Mulji Dodhia v. National & Grindlays Bank Limited. The dispute in Dodhia v. Grindlays concerned bank seizure of hypothecated goods.Footnote ⁷³ It transcended these particular details to become, in James S. Reed’s words, “familiar to all East African judges and lawyers” because the case forced the court to decide whether or not the EACA was bound by a previous decision the Privy Council made when East African countries were still under its jurisdiction.Footnote ⁷⁴ This question would, in turn, determine whether East African law remained absolutely subordinate to its colonial legacies or if the rupture of independence gave East African judges the authority to create law tailored to East Africa.

In January 1969, slightly less than a year before the case’s November decision, the President of the Court of the EACA, Charles Newbold, gave two speeches to the UDSM Law Faculty, which were subsequently published in the Eastern Africa Law Review.Footnote ⁷⁵ In his first speech, Newbold noted that, as the years since independence grew, English cases would “grow less useful” for East Africa and East African cases would gain “increasingly greater” relevance.Footnote ⁷⁶ These comments suggested that Newbold would be open to ruling against English decisions functioning as “binding precedents in East Africa.”Footnote ⁷⁷ However, in his second speech, Newbold expressed tentativeness about enacting this position; he decried the possibility of East Africa developing as strong a process of judicial review as the U.S. Supreme Court and frowned on the possibility of judges serving as “policy maker[s],” implying that any judicial activism would undermine the entire judiciary.Footnote ⁷⁸ During this same period, two scholars at UDSM, G.F.A. Sawyerr and Jack A. Hiller, circulated to the relevant counsel and all the members of the EACA an unpublished draft of their manuscript, The Doctrine of Precedent in the Court of Appeal for East Africa, which explicitly argued that the Court of Appeal ought to embrace the legal interpretive role of judges and needed to move beyond unnecessarily restrictive continuation of absolute British precedence. Hiller and Sawyerr, directly stated that East Africa had “neither the time nor the personnel” to ignore the necessity of judicial policy given the enormous task of “dismantling… the system of colonialism” and further concluded that “no court in East Africa should consider itself bound to follow any decision of any foreign court.”Footnote ⁷⁹

When the court decided Dodhia v. Grindlays, the EACA’s justices unanimously rejected the binding nature of previous Privy Council decisions. In their ruling and concurring decisions, the justices directly followed the argument laid out in Hiller and Saywerr’s scholarly manuscript, which other scholars noted as a significant contribution towards the decision.Footnote ⁸⁰ Over the course of the adjudication of Dodhia v. Grindlays, UDSM and the EACA functioned in concert to significantly restrict the immutable power of a particularly colonial remnant of British precedent, and left intact the possibility of East African law not beholden to foreign courts. In addition to illustrating the close relationship of the EACA and UDSM, the decision in Dodhia v. Grindlays directly fostered the conditions for the judicial realization of East African law as a distinct category beyond British law. However, the case also underlined the limits of this synthesis of federal institutions. While Sawyerr and Hiller were emphatic that the separation from British precedent could not merely be a symbolic gesture, within the narrow facts of Dohdia v. Grindlays, the EACA decided to follow the framework of the previous Privy Council decision despite not being bound by it.Footnote ⁸¹

As the publication of Newbold’s speeches suggests, UDSM’s law faculty and the EACA were further tied together by the faculty’s efforts to generate an academic corpus of regional legal publications and scholarship. The first journal created by the faculty of UDSM was the East African Law Journal (EALJ), which launched in 1965.Footnote ⁸² Publishing concerns meant that the journal’s editorial function was moved to Nairobi, and in 1968, the law faculty launched the Eastern African Law Review (EALR).Footnote ⁸³ The purpose of these publications was to create a body of legal analysis for East Africa which, outside the Journal of African Law, did not previously exist.Footnote ⁸⁴ These journals were especially important given the comparatively small number of published works about East Africa compared to other regions of British-colonized Africa, and the reality that, outside case reports and academic journals, there were few available sources for practitioners to access.Footnote ⁸⁵ Both the EALR and EALJ regularly included reports on cases of the EACA and opined on their regional precedential significance. This was vital, because at least through 1971, UDSM was the only place aside from the EACA itself where unreported EACA cases were sent.Footnote ⁸⁶ Even beyond analyses of the EACA in particular, much of the legal output from scholars at UDSM or published in journals established by the law faculty attempted to understand law as a regional formation. Across topics as diverse as commercial law reform, murder prosecution, and legal etiquette, scholars attempted to ground their work in the shared corpus of East African law.Footnote ⁸⁷ By writing from the perspective of an East African regional legal analysis, scholars not only embraced the reality that law after decolonization was defined by a shared transnational identity but also actively propagated the particular formation of East African law as an institutional legacy of regional Pan-Africanism. In its first decade, the task of building the early post-independence foundations of East Africa lent UDSM’s law school what the later law dean Josephat Kanywanyi would remember as a distinct set of institutional “progressive nationalist/Pan-Africanist aspirations.”Footnote ⁸⁸

Professors of “Legal Radicalism”

While the early importance of UDSM’s legal contributions stemmed partially from the basic task of building a foundation of law across Tanzania, Kenya, and Uganda, its international impact also increasingly came from the novel contributions of faculty who drew on intellectual traditions that sometimes included federal Pan-Africanism but extended far beyond it. The initial faculty of UDSM consisted of the Australian dean and two junior British scholars, A.B. Weston, William Twinning, and Patrick McAulson.Footnote ⁸⁹ That trio met for the first time in the summer of 1961, just months before the classes were set to begin.Footnote ⁹⁰ As Twinning described it, the early years of the school were comprised of the faculty trying to rapidly gain proficiency in the law of East Africa, develop pedagogical tools for communicating the law, and establish a curriculum which would be certified by the University of London.Footnote ⁹¹ Despite these rushed early days, UDSM grew rapidly, particularly with its inauguration in 1963 and its establishment as a full partner university in the UEA 1964. It became the primary hub for East African legal scholarship and training until the dissolution of the UEA. While some legal teaching existed elsewhere in East Africa, UDSM produced so many important East African lawyers through the 1970s that lawyers who attended other schools, including in the United Kingdom, often felt permanently excluded.Footnote ⁹² As a collection put together to celebrate the law faculty’s 25th anniversary would later note, the defining feature of UDSM’s role in advancing legal education in East Africa became apparent as a broad-tent commitment to pushing against the “limits of legal radicalism.”Footnote ⁹³

The law faculty grew quickly from its early 1961 inception. During the 1960s, the school was an attractive opportunity for expatriates who, in the words of one such individual, “felt estranged from their own societies” and engaged in forms of liberal anti-colonialism.Footnote ⁹⁴ However, while American legal influences shaped the early curriculum at UDSM, and a variety of expatriates continued to many important roles in the law school through the end of 1970s, the UDSM Law School Africanized much faster than the EACA, in part due to funding for faculty localization from the Rockefeller Foundation.Footnote ⁹⁵ By 1965, the University had already hired its first East African graduate of the UDSM law school.Footnote ⁹⁶ After A.B. Weston’s departure in 1968, the UDSM hired a series of East African scholars as Deans of the Law School, starting with the influential Kenyan scholar Yash Ghai, and its first Tanzanian, Dean Bishota, in 1970.Footnote ⁹⁷

The school’s demographic evolution was also accompanied by intellectual innovations. The early presence of a noteworthy group of historians of Africa, including Terrance Ranger, who referred to the early law professors as a “very bright young bunch,” and an overlapping group of young radical intellectuals led by Walter Rodney, nurtured this intellectual development.Footnote ⁹⁸ In the initial days of the law school, the faculty was closely associated with the radical edge of liberalism. Increasingly in the late 60s and into the 70s, UDSM was defined by its explicit Marxist turn. By the late 70s, the project of radical East African academic law had begun to disintegrate as the establishment and growth of separate national schools of law in the 1970s eroded an important support system for regional analysis.

The first significant academic approach to law to partially develop at the University of Dar es Salaam was an iteration of the left-liberal project of Law and Development, sometimes referred to as Law in Context.Footnote ⁹⁹ Law and Development scholars sought to apply the insights of legal realism to pursue the useful application of law for social change.Footnote ¹⁰⁰ Despite the formal demarcation implied in the construction of a “school,” these scholars included a varied cross-section of faculty who generally opposed the prescriptive position of legal positivism but were not avowed Marxists. This ranged from foundational and doctrinaire Law and Development figures like Robert Seidman to more iterant fellow travelers like Ghai, who were willing to draw from Marxist or even positivist analysis while remaining concerned about ensuring sufficient standards of rigor were preserved as part of training East Africans who would need to fight “foreign corporations with their clever lawyers.”Footnote ¹⁰¹

Portions of the funding for these scholars and their project came from the American development complex, including the Rockefeller and Ford Foundations.Footnote ¹⁰² Ford Foundation support included money for programs at UDSM, like a 1963 conference on Local Courts or a series of training seminars from 1964 to 1966 for both academics and bureaucrats on “Legal Aspects of Economic Development,” but it also included more basic funding for the operation of the university, like the Law Faculty building.Footnote ¹⁰³ This foundation support came both with an explicit acknowledgement that law seminars created a space for participants to “articulate their ‘anti-colonial’ and nationalist feelings,” and a recognition that UDSM was “the source of supply” of African lawyers “for all three East African countries.”Footnote ¹⁰⁴ For many Law and Development scholars, institutions like UDSM or the EACA represented a possible mode for a general modernizing project and the consolidation of something like East African social democracy grounded in a more progressive legal approach.

While Law and Development held significant institutional sway, it lacked a robust base among students at UDSM. Buoyed by rising political tides in Tanzania, through the late 1960s, a wave of younger scholars began to increasingly push for even more explicitly anti-imperial and anti-capitalist legal curriculum and scholarship. This shift was built on the University’s early reputation as a central academic hub of Pan-Africanism and socialist thought, and accelerated after 1967 when the Tanzanian government expanded its commitment to socialism under the Arusha Declaration. After Kwame Nkrumah was overthrown in 1966 in a coup, Tanzania, with the possible exception of Algeria, had become the most important political and intellectual home for Pan-Africanism and African radicals on the continent.Footnote ¹⁰⁵ In addition to serving as the base for Southern Africa’s liberation struggles as the headquarters for the OAU’s Liberation Committee from 1963, Dar es Salaam hosted the first Pan-African Congress on African soil in 1974.Footnote ¹⁰⁶ The government’s development of a form of African socialism called Ujamaa was hailed by Black radicals like C.L.R James as “the highest peak reached so far by revolting blacks,” and excitement about that project helped the university attracted a diverse range of radical scholars such as Walter Rodney and Giovanni Arrighi.Footnote ¹⁰⁷ By 1968, the Law Faculty at UDSM’s brochure proclaimed that it would train students to be “fitting agents for the revolutionary transformation of society upon which the governments of East Africa are so firmly set.”Footnote ¹⁰⁸

With the strength of these institutional tailwinds, the law faculty experienced an explosion of heterogenous Marxist work, the second wave of influential legal thought at UDSM. One iteration of this wave, led by the Ugandan professor Dan Nadubere, saw little use in analyzing the internal logic of law, and instead focused on economic analyses of the state, with critics accusing them of mechanistically relying on an assumption that “law as part of the superstructure must reflect the economic base.”Footnote ¹⁰⁹ Another strand, associated with the Asian Tanzanian student and lecturer Issa Shivji, saw law as an important tool in the “domination of subordinate classes” within which “progressive” struggle could nonetheless occasionally contest the interests of global capital without mirroring liberalism’s hyper-fixation on law and rights.Footnote ¹¹⁰ Across factions, the school of law’s Marxist contingent included a number of East African scholars but it was also bolstered by British, American, Hungarian, East German, Caribbean, and West African fellow travelers.Footnote ¹¹¹

As a student, Shivji was a leader of the University Students African Revolutionary Front (USARF), which helped catalyze the turn toward Marxism. From its outset, the USARF drew significantly from students majoring in law and even held its weekly discussions in the law building.Footnote ¹¹² The group actively challenged the faculty to radicalize the legal curriculum, in part by staging an occupation of the law school over the inclusion of military law as part of the core course load.Footnote ¹¹³ In one particularly striking memorandum, a subsidiary group of the USARF, the Student Vigilance Committee of the Faculty of Law, charged the legal faculty with abetting “imperialist subversion against socialism” if further curricular change was not made.Footnote ¹¹⁴ This critique of the law curriculum was a direct result of the school’s existing heterodox tendencies and the students’ investment in the value and possibility of its further radicalization. The push was partially successful as part of a larger curriculum reform effort around campus, and USARF-ally Sol Picciotto was soon tasked with teaching a mandatory first year course in “Social and Economic Problems in East Africa.”Footnote ¹¹⁵

Beyond Shivji, law professors Picciotto, Joseph Kanywanyi, and Dan Nadubere, were among the small cadre of professors directly advising the USARF.Footnote ¹¹⁶ When the USARF decided to launch a publication, Cheche, Kanywanyi, along with Rodney, served as their advisor. In 1970, Shivji produced Cheche’s most influential essay “The Silent Class Struggle” arguing that the Tanzanian bureaucratic class constituted a “bureaucratic bourgeois” and drew responses from scholars across campus, including Rodney.Footnote ¹¹⁷ Marxist law students and faculty also fostered broader radical networks. Left-wing figures in the government like the Minister of Economic Planning Abdulrahaman Babu, read and participated across camps in the debates among UDSM’s Marxist legal scholars, and some of these debates spilled out of the campus and into national newspapers.Footnote ¹¹⁸ The Mozambiquan liberation party FRELIMO, alongside other southern African liberation parties headquartered in Dar es Salaam, not only staged demonstrations with the assistance of students in USARF but also received advisement from UDSM professors.Footnote ¹¹⁹ In addition to the groups supported by the Liberation Committees, Dar es Salaam played host to a number of radical pan-Africanists in the 60s and 70s including Stokely Carmichael (later Kwame Ture), Robert F. Williams, and Angela Davis, who all spoke at UDSM at the invitation of the USARF and its organizational descendants.Footnote ¹²⁰ On the crest of this wave, scholars took the opportunity to use law journals founded at UDSM to publish reflections on “The Legal Status of Freedom Fighters in Africa,” make arguments about “Law and Socialist Development Rural Development,” or write interrogations of the Marxist obligations of the “Lawyer-Intellectual.”Footnote ¹²¹ In addition to their scholarly and activist roles, legal Marxists at UDSM served in a variety of government advisory positions in the 1970s including Nadubere serving as chairman of the Board of Directors of the East African Railways and Kanywanyi serving on the Board of Directors for the Bank of Tanzania.Footnote ¹²²

This radical peak did not last forever. While the Marxists in UDSM’s law faculty would survive the dissolution of the UEA and the banning of USARF, both in 1970, the second half of the 1970s saw increasingly sharp intellectual battles within the law school’s faculty and the early rumblings of university austerity. In 1976, Issa Shivji published a monograph-length extension of his previous work, titled “Class Struggles in Tanzania,” which sparked a series of initially privately circulated exchanges about the nature of class, capital, and the state in developing nations.Footnote ¹²³ After the circulation of Shivji’s work and the paper from Mamdani and Bhagat, Nadubere published a sharp critique in which he characterized all involved as “neo-Marxist, neo-Trotskyite” in orientation.Footnote ¹²⁴ This lead to a spiral of responses, including in both campus and national newspapers, in which the precise role of the Tanzanian state and bureaucracy in facilitating the interests of international finance capital was hotly contested. The debate was increasingly adjudicated by adherence to Marxist-Leninism, with Shivji and allied thinkers decried as “Petty-Bourgeois” in addition to “neo-Marxist” while Nabudere, Omwony Owjok, and others were described as economistic and “Neo-Kautskyite.”Footnote ¹²⁵

The eventual edited collection of the debates published in 1982 had over 30 contributions including an introduction from the now-exiled Abdulrahman Babu and prefacing reprintings of Lenin’s Letter to Apollinaria and Mao’s Combat Liberalism.Footnote ¹²⁶ Even in retrospect, Nabudere would recall Shivji’s decision not to further engage in the debate as “arrogant and haughty” while in 1986 Shivji would echo the Dean of Law Cosata Mahalu in remembering Nabudere’s cohort as having excelled in “dogmatism, intolerance, and anti-democratic practices.”Footnote ¹²⁷ By 1978, the debates had largely cooled, and Nabudere’s 1979 departure to participate in a transfer of power in Uganda, briefly leading a Maoist insurgency around Mount Elgon, closed the chapter for one version of UDSM’s international legal influence.Footnote ¹²⁸ Tanzania’s economic immiseration and resulting structural adjustment in the 1980s would precipitously lower both the nation’s larger political cache and the University’s immediate material capacity for the basic resources of research and teaching.Footnote ¹²⁹ As the university suffered, Marxists lamented the fact that that despite their robust production of theory and even a turn toward legal aid, they had, not unlike the EACA, failed to accomplish a vision of law taken up by the masses.Footnote ¹³⁰ This combination of global neoliberalism and IMF-enforced structural adjustment would soon consume the focus of the faculty of law, with Kanywanyi expressing concern in 1989 that faculty would “crumble for lack of sufficient resources.”Footnote ¹³¹ These challenges to the university’s radical community came to echo an earlier sardonic comment Sol Picciotto remembered finding written on a UDSM lecture hall chalkboard “Lumumba, Che Guevara, our best heroes all are dead… I myself am not feeling very well!”Footnote ¹³²

The Collapse of the EAC and the Legacies of the EACA and UDSM

In many ways, the collapse of the Tanzanian economy and as a consequence the University of Dar es Salaam were just the final blow to the longer project of East African legal worldmaking. By the early 1970s, political relationships between the East African nations were in disrepair because of divergent economic interests, disagreements about appropriate border regulation, and the rise of Idi Amin. The Community Authority ceased to meet in 1971 due to Nyerere’s refusal to sit down with Idi Amin, setting in motion rolling bouts of organizational upheaval and tension.Footnote ¹³³ As a result, the decline of the EAC occurred slowly at first and then suddenly. After years of erosion, the failure of East African Airlines in January of 1977 catalyzed the total collapse of the community.Footnote ¹³⁴ By this time the federal bond of the University of East Africa had been dissolved for seven years. The EACA had survived as an appendage to the economic remnants of political federation, but when that foundation gave out, it ceased to exist. Through July 1977, the court was still in session, but by October, three of the four EACA justice were hearing cases in Nairobi as justices of the newly inaugurated Kenyan Court of Appeals while the fourth departed to Tanzania to serve on the Tanzanian Court of Appeals.Footnote ¹³⁵ None of East African nations wanted to explicitly dissolve the EAC, but it remained dormant after 1977, and within a year, all three nations had created domestic appeals systems to complement domestic, less ambitious, law schools.

Viewed among the wreckage of the original EAC, the Court of Appeal for East Africa and the University of Dar es Salaam School of Law have a mixed legacy. As the final court of appeal for Uganda, Tanzania, and Kenya for almost 17 years, the EACA generated an enormous body of jurisprudence which, along with the legal scholarship of the UDSM School of Law, continues to be cited consistently across three different national contexts, with decisions like Dohdia v. Grindlays continuing to occur as precedent in contemporary cases. The EACA also proved to be a forerunner to an entire second wave of international courts in Africa. While the Court of Appeal was the only international African court of appeal during the 1960s and 1970s, over a dozen regional and continental courts now dot the continent and exist in some partial debt to the EACA.Footnote ¹³⁶ At least one such court, the East African Court of Justice (EACJ), an organ of the reestablished East African Community, claims a direct inheritance from the EACA, and not only exercises jurisdiction over Kenya, Tanzania, and Uganda but also Burundi, Rwanda, The Democratic Republic of the Congo, Somalia, and South Sudan.Footnote ¹³⁷ However, it would be easy to overstate the continuity of the EACJ from the EACA, especially given, Issa Shivji’s convincing argument that the modern EAC “does not have a pan-African vision.”Footnote ¹³⁸

In similar institutional terms, UDSM’s influence is undeniable but similarly flawed. In the aftermath of the law school’s role as the legal wing of UEA, UDSM graduates came to comprise a plurality if not sizeable majority of the upper echelons of the East African legal practice. Graduates of the University of Dar es Salaam have served as chief justice of all three of Tanzania’s, Uganda’s, and Kenya’s highest courts, and both of the East Africans currently serving on the African Court of Human Rights attended UDSM, as did the current Chief Justice of the East African Court of Justice.Footnote ¹³⁹ The school’s intellectual legacy is arguably even broader. For two decades, the University of Dar es Salaam produced an enormous amount of pedagogy and scholarship across a spectrum of left-liberals to Marxist-Leninists that sought to understand the production of law within its social and economic context. This approach proved impactful enough, that even when a portion of the faculty was eventually re-constituted at the University of Warwick, the partial reunion produced its own “school” of influential critical legal thought.Footnote ¹⁴⁰ When John Harrington and Ambreena Manji sought to commemorate the 25th Anniversary of the journal Social and Legal Studies and take stock of socio-legal studies in the Third World, they did so using UDSM’s historical role as a primary example and borrowing their title from the UDSM Faculty of Law’s 25th Anniversary edited collection.Footnote ¹⁴¹ This legacy can be further traced through more recent critical legal developments. The influence of Dar es Salaam can be seen in recent reappraisal of UDSM’s Marxist state debates as well as Third World Approaches to International Law (TWAIL) within which UDSM-alumnus and Kenyan-American scholar Makau Mutua played an important foundational role while drawing on the example of Tanzania.Footnote ¹⁴² Here though the retrospective nature of lineages, like jurisprudence, risks obscuring more recent decline. While the University of Dar es Salaam remains an important national school of law, it no longer sits at precisely the same regional or international set of worldmaking projects that invested it with mid-century global importance.

Notwithstanding their contemporary absence, the shared legacy of the EACA and UDSM in creating the domain of East African law remains a useful yardstick for measuring the success of 20th century East African radicals in remaking the law. The federal Pan-Africanism of early East African independence was neither the most radical nor the most powerful attempt to reshape law on the African continent, and for the nationalist leaders like Julius Nyerere that guided the federal Pan-African moment, law tended to be a secondary concern. Nevertheless, the contingent convergence between federal Pan-African ambition and the practical necessity of post-Independence legal institutions created a set of transnational legal institutions that carried forward, both incidentally and intentionally, Pan-African possibility. A possibility which was open to further intervention by overlapping currents including anti-imperialism, African socialism, legal realism, and competing interpretations of global Marxism. It would be dishonest to pretend the EACA or the University of Dar es Salaam Law School transcended the model of the nation state, but it would be an equal mistake to fail to recognize the Court and University as important examples of the kinds of institutional and intellectual diversity that the moment of formal decolonization, in all its varied specificity, opened up within the law. The refraction and transformation of East African law through the process of decolonization echoes both Meredith Terretta’s excavation of the role of lawyers for African decolonization actors in forging linkages between collective and individual rights as well as Sam Childrys Fury’s documentation of the abortive project of building Biafran decolonized legitimacy through legal institutions.Footnote ¹⁴³ From the paramount process of everyday courtroom appeal to the revolutionary impulses of law professors, the legal world of East Africa in the 1960s and 70s reflected a partially realized post-decolonization internationalism.

This partial realization of legal radicalism reflected the partially accomplished task of East Africa’s more total transformation in the aftermath of independence. As Issa Shivji would note in 1986 when reflecting on the boundaries of East Africans’ radical work within the law, “the limits of legal radicalism ultimately express the limits of reformist struggles.”Footnote ¹⁴⁴ In Shivji’s reading, the projects of legal radicalism undertaken in East Africa and elsewhere only ever escaped the limits of existing law insofar as they became “a larger and broader social cultural movement of the oppressed people and popular classes.”Footnote ¹⁴⁵ Read further from the moment of decolonization such a movement might feel distant. However, as the later Dar es Salaam debates suggest, formal decolonization was far from the final horizon for many East African legal thinkers who were actively engaged with questions of finance and the rising tide of neoliberalism. Writing in 2021, former Kenyan Chief Justice and UDSM-graduate Willy Mutunga argues that the possibility still remains that “constitutions, the law, and the judiciaries could be instruments of transformation and revolution.”Footnote ¹⁴⁶ Drawing liberally from UDSM’s legal radicals including Ghai, Shivji, and Nabudere, Mutunga clarifies that any effort to realize a longer liberatory project like a “global socialist commonwealth” could “only be realized through solidarity struggles of global citizens under their revolutionary political leadership in the South and North.”Footnote ¹⁴⁷ Mutunga’s claim distills perhaps the most basic element of the legacy of the EACA and UDSM — a vision of law in East Africa that attempts to confront the existing limits of legal radicalism, weakened only partially by an ambitious but ambiguous vision of the masses that would make such a confrontation possible.