Colonial Justice and Decolonization in the High Court of Tanzania, 1920-1971

Ellen R. Feingold

• Publisher: Palgrave Macmillan
• Year: 2018
• Print ISBN: 9783319696904
• eBook ISBN: 9783319696911
• Topic: History
• Subtopic: African History
• Index: History

This book is the first study of the development and decolonization of a British colonial high court in Africa. It traces the history of the High Court of Tanzania from its establishment in 1920 to the end of its institutional process of decolonization in 1971. This process involved disentangling the High Court from colonial state structures and imperial systems that were built on racial inequality while simultaneously increasing the independence of the judiciary and application of British judicial principles. Feingold weaves together the rich history of the Court with a discussion of its judges – both as members of the British Colonial Legal Service and as individuals – to explore the impacts and intersections of imperial policies, national politics, and individual initiative. Colonial Justice and Decolonization in the High Court of Tanzania is a powerful reminder of the crucial roles played by common law courts in the operation and legitimization of both colonial and post-colonial states.

© The Author(s) 2018

Ellen R. FeingoldColonial Justice and Decolonization in the High Court of Tanzania, 1920-1971Cambridge Imperial and Post-Colonial Studies Serieshttps://doi.org/10.1007/978-3-319-69691-1_1

Begin Abstract

1. Introduction

Ellen R. Feingold¹

(1)

Georgetown University, Washington, DC, USA

End Abstract

In January 1982, members of Tanzania’s Bar and Bench gathered in Dar es Salaam’s leafy Kinondoni cemetery. Under the shade of two large trees, against the back wall of the cemetery, they witnessed the burial of a man who was the last of his kind in Tanzania (see Figs. 1.1 and 1.2).¹ To some of the mourners, the deceased man was a mentor, personal friend, and custodian of the common law system. To others, he was a relic, a remnant of a bygone era. He was Tanzania’s last colonial judge.

Fig. 1.1

Justice Philip Biron’s grave in Kinondoni Cemetery (Photo by A.K. Dewar and E.R. Feingold, Dar es Salaam, December 2008)

Fig. 1.2

Close-up of headstone of Justice Philip Biron’s grave in Kinondoni Cemetery (Photo by A.K. Dewar and E.R. Feingold, Dar es Salaam, December 2008)

Justice Philip Biron died in Dar es Salaam almost exactly 20 years after Tanzania gained independence from Great Britain in December 1961. When Biron first arrived in Tanganyika in 1949 British colonial rule in East Africa appeared to be deeply entrenched. Under the employ of the Colonial Legal Service, Biron started his career as a Resident Magistrate , responsible for administering colonial justice according to the British law in Tanganyika.² In the decade that followed, he was promoted through the ranks of the colonial judiciary and, in 1961, as Tanganyika transitioned from colony to nation, Biron became a judge of the High Court. For the 20 years that followed, until his death on 31 December 1981, Biron remained on the High Court Bench, forging personal and professional relationships based on his commitment to the new nation that allowed him to outlast every other former member of the British colonial government.

During his more than 30-year career in Tanganyika Biron witnessed the growth and decline of the colonial state as an agent of one of the most durable colonial institutions: the High Court of Tanganyika (later the High Court of Tanzania).³ This Court was one of a multitude of common law courts established by the British in the process of imperial expansion.⁴ Among the colonial state institutions the British introduced to their colonies, colonial high courts have been some of the most enduring. These high courts have not only remained intact since the transfer of political power from Great Britain to national governments, but often still sit atop national justice systems, adjudicating some of the most high-profile and controversial cases. The prevalence of common law courts in the British Empire and the survival of these institutions after independence speaks to their utility to colonial authorities and post-independence governments, yet they have been largely overlooked in studies of colonial rule and decolonisation. As the first study of its kind, this book tells the story of the development and decolonisation of a British colonial high court in Africa.

Two central questions drove this study. First, what was the role of colonial high courts and their judges in British colonial rule? Second, why did colonial high courts survive the end of British rule and how did post-independence governments transform them into national institutions? To explore these broad questions, this book traces the history of a single colonial high court, the High Court of Tanganyika, from its establishment in 1920 to the end of its institutional process of decolonisation in 1971.

The High Court of Tanganyika is representative of many of the colonial high courts across the British Empire in terms of its structure, the characteristics of its judges, and the procedures they followed. The British set up the High Court of Tanganyika during the early stages of British rule of the territory, after gaining authority over Tanganyika from Germany under a League of Nations mandate following the end of the World War I. Great Britain took over administration of Tanganyika through a political agreement, rather than through settlement or direct conquest, and the High Court was among a group of colonial state institutions the British established in the early 1920s to formally initiate British rule. This book examines the High Court of Tanganyika’s development alongside the establishment and growth of the colonial state and indirect rule system, as well as in relation to the political changes that preceded and followed Tanganyika’s national independence in 1961.

The High Court of Tanganyika is a new lens through which to examine the formation of colonial state structures and the process of decolonisation . This book weaves together the rich history of this institution with a study of its judges, both as a cohort and as individuals, to explore the intersection of imperial policies, national politics, and individual initiative. This approach draws on and contributes to the study of British colonial legal systems, colonial administration and professions, and the process of decolonisation .

Colonial Legal Systems of the British Empire

As Great Britain expanded its empire, it introduced the common law system to new places and peoples around the world. This ‘global process’ of spreading the common law tradition became a defining feature of British imperialism and remains a legacy of the British Empire.⁵ The diffusion of the common law system was not an accidental by-product of empire-building, but rather a crucial instrument of imperial expansion and governance. It served as both a vehicle of imperial ideology and an ideological justification for imperialism;⁶ it was ‘proof’ that imperial expansion was not only about the occupation of land and extraction of resources, but rather was driven by a so-called ‘ civilising mission’ that involved the extension of ‘ British legal traditions’ : the rule of law and equity before the law .⁷ Common law was also a tool—and sometimes a forceful weapon⁸—of colonial governance that allowed the British to influence the social, political, and economic structures and relationships in their colonies.⁹ As the common law system spread across the Americas, Asia, and Africa, it also helped to connect ‘disparate parts’ of the Empire and provided a common ground for the exchange of policy and staff.¹⁰ Of course, the common law tradition did not fill a legal void in the places to which it travelled, but rather competed with and eventually dominated pre-existing (though not static) ‘customary’ legal traditions and systems.¹¹

Since the decline of colonial rule in the mid-twentieth century, the field of colonial legal history has grown significantly with diverse local, national, and, more recently, global studies.¹² These studies have shown the great variation in and disputes over laws, legal practices, and control of legal institutions within and across modern empires. From this work, it is increasingly evident that the study of colonial law is riddled with paradoxes. For example, Martin Chanock’s study of law under British rule in Malawi and Zambia shows that while it was a tool of colonial domination and social and economic transformation, it was also a means through which colonial subjects could resist and reshape colonial rule.¹³ Martin Weiner’s study of interracial homicide trials in the British Empire reveals the contradiction between the principles behind the common law system and its application in the colonies. He asserts that while the use of common law was held up as evidence of British liberalism and used as a justification for British expansion, in practice colonial officials used the law to reinforce racial inequality.¹⁴ Underpinning both of these arguments, however, is not a paradox, but the current guiding principle in the field, which is that colonial law was a place of engagement between colonial authorities, settlers, and colonial subjects, and that all three groups sought to use the law to define their relationships to one another.¹⁵ This engagement often took place within the framework of colonial legal institutions that both shaped legal disputes and were shaped by them.

Colonial court systems were a hallmark of British colonial rule in the twentieth century. A crucial machinery of ‘formal’ colonial states , the courts enforced colonial laws on issues central to the colonial project, such as land, labour, and taxation.¹⁶ British colonial court systems were hierarchical with colonial high courts at the top, subordinate courts in the middle, and Native or customary courts at the bottom.¹⁷ As part of the British policy of indirect rule in Africa, colonial court systems were bifurcated by race. Cases involving Europeans were heard in the common law courts. While cases involving Africans that were not of interest to colonial authorities or related to serious crimes—such as disputes over dowries or child custody—were heard before African authorities and decided according to assertions of custom, with varying provisions for appeal to the highest courts across the colonies.¹⁸

This hierarchical system, with colonial high courts at the top and customary courts at the bottom, reflects the shift Lauren Benton describes from the ‘truly plural legal orders’ of early modern empires to the hierarchical and dominant colonial legal systems of modern empires, such as the British Empire.¹⁹ As the British set up new colonial states in Africa in the early twentieth century, the colonial court systems they introduced replicated or reflected the colonial legal hierarchies that had been negotiated or tested elsewhere in the Empire, leaving less room for ‘jurisdictional politics’ to shape colonial legal structures.²⁰ The result was markedly uniform systems of colonial legal hierarchy with similar, recognisable institutions of colonial legal authority across a geographically and culturally diverse population.²¹

Notwithstanding the large number of British colonial high courts in Africa and across the British Empire, they have rarely been the subject of careful study.²² Research has largely focused instead on the courts below and above them in the colonial legal hierarchy. Among the lower-level courts, customary courts have received the most scholarly attention.²³ This is unsurprising given that they heard the largest number of cases and were the courts with which Africans would have interacted. Though far fewer in number, studies of the subordinate common law courts have provided valuable insights into the internal tensions of the indirect rule system between the colonial executi...

Table of contents

• Cover
• Front Matter
• 1. Introduction
• Part I. The High Court of Tanganyika Under British Rule, 1920–1958
• Part II. Decolonising the High Court of Tanganyika, 1959–1971
• 8. Conclusion
• Back Matter