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Mahmood Mamdani
(First published 1996)
The British example inspired many lesser colonial powers: from the Belgians in the Congo to the Portuguese in the colonies of Mozambique, Angola, and Guinea to the Italians in Libya and even to the Americo-Liberians. The Belgians introduced indirect rule institutions in the Congo in the 1920s. The reorganisation of the administration in 1918 was followed by the creation of a special legal category called native, subject to customary law and to whom the Code Napoleon did not apply. From 1921 on, all Africans were eventually required to return to the rural areas from which they were deemed to have come in the first place. The native must belong to his tribe: the notion of the native as permanently a peasant and only temporarily a worker was given legal reality through a series of decrees between 1931 and 1933.
The Portuguese have a history of colonial assimilation of the civilised natives that predates the French Revolution. Royal ordinances and orders from 1755 on made it a criminal offence to refer to offsprings of mixed marriages as "half-breeds or (by) any other insulting term". If accompanied by a "certain measure of education," the profession of Christianity qualified a native to be treated as civilised, and was considered "sufficient qualification for equal political and judicial rights." Like the French, however, the Portuguese entered this century with a policy designed to reduce all mediation between their field officers and natives to the village headman. The exception to this tendency were the Bakongo in Angola and the Fula in Guinea. Native policy was systematised in the late 1920s and put under charge of the local state, its functionaries being the chefes de posto (district officers) and the regedores (administrative chiefs). In time, there evolved a hierarchy of African chiefs, from the senior regulos to the junior cabos. The African population was divided between the civilisados - by 1950, five thousand in Mozambique and thirty thousand in Angola - and the indigenas (natives). The latter group was the proper concern of native policy, systematised as the Estatuto Politico Civil e Criminal des Indigenas in 1929. The statute viewed the native not as an individual but as "part of a community ruled directly by a chief, and subject in the first instance to African customary law". The native was granted access to communal land and, in return, paid the native tax and was "liable to perform a variety of (labour) services".
Similarly, a royal decree in 1929 in Libya divided the nomadic peoples of the colony into tribes and sub-tribes at the discretion of the governor and on the advice of the regional commissioner. In Liberia, where there was no racially distinct coloniser, "civilised men" were defined as "those who can read and write English". Indirect rule institutions were introduced with the implementation of the Barclay Plan in 1904. The plan contained two main features: administrative chiefs and a paramilitary force to back them up. The indigenous population was reorganised into clans, chiefdoms, and districts: several clans constituted a chiefdom, and several chiefdoms made up a district with its own commissioner. At each level, executive and judicial functions were performed by the same officials. It was the duty of chiefs to "maintain order, recruit labour and collect taxes", a job they accomplished with the help of the newly formed Liberian Frontier Force.
Where there was a significant settler presence, the transition from direct to indirect rule was usually an informal and protracted affair, with legal recognition following rather than clearing the ground for it. In such instances, the point of legal reform was to prune the worst excesses of indirect rule authority brought to light by popular protest.
Take the example of Southern Rhodesia. The "cornerstone of all Southern Rhodeisan law" was the provision that "the law to be administered shall, as nearly as the circumstances of the country will permit, be the same as the law for the time being in force in the Colony of the Cape of Good Hope". Here, as in South Africa, the president's power to appoint chiefs included "the right to divide existing tribes into two or more" or "to amalgamate tribes or parts of tribes into one". Likewise, the line of native authority ran from chiefs to headmen to messengers and heads of kraals. As in the French colonies, where the chiefs had no status, Southern Rhodesian law books contained hardly a reference to the powers of native chiefs and headmen, but there was no shortage of clauses on their duties or obligations. Yet even if the law was entirely silent on this question, it had long tolerated chiefs and headmen dispensing customary justice as part of an on-the-ground reality.
Thus, when the 1937 Native Law and Courts Act defined these powers formally and required that customary law be dispensed only by those chiefs or headmen possessing "a warrant from the governor", it was less to inaugurate a new era of indirect rule than to address its problems, by defining and limiting the powers of indirect rule authorities in the face of popular protests against their abuse. Exactly that same "reform" came to Botswana through the Native Courts Proclamation of 1938, and for the same reason. As popular resentment built up against indirect rule authorities in the 1920s and 1930s, a government commission was appointed which confirmed the widespread abuse of powers by chiefs and headmen; to check it, the reform specified that only those chiefs and headmen issued "with warrants by the Resident Commissioner could exercise judicial powers and enforce their decisions". Similarly the statute recognising "traditional native organisations" dispensing "traditional law" in the Portuguese colonies was not passed until 1954.
A complete reform of indirect rule leading to its full autonomy was possible only where the weight of settler interests was weak. That was, as one would expect, in the non-settler colonies. But it was also effected in those settler colonies where the relative strength of settler influence was weakened by other fractions of capital or a powerful peasant movement or some combination of the two. One example of where such a reform was effected in spite of a substantial settler presence was the British colony of Swaziland. Settlers had long opposed autonomous powers for Swazi chiefs, and the British-controlled central state had obliged in a context where Swaziland was assumed to be on a political course that would lead to its eventual absorption into the Republic of South Africa. But the unexpected victory of the National Party in the 1948 elections put into question this assumed trajectory. As the National Party consolidated its hold over the South African state, the Swazi colonial state effected a successful transition in the form of indirect rule from semi-autonomy to autonomy and then to independence. The shift is clear if we compare two key legislations from 1944 to 1950. The sharply limited autonomy of native rulers was reflected in the Native Administration Proclamation of 1944 in Swaziland: it gave the British high commissioner the power to appoint and depose all chiefs, including the paramount chief. The tide turned with Proclamation 79 of 1950. It recognised the Swazi king as the sole authority for issuing any of a wide variety of twenty-nine orders enforceable in the customary courts. The king and chiefs were empowered to make rules providing these did not conflict with existing laws in the country. These rules could be enforced in native courts. Another proclamation (the 1950 Native Courts Proclamation) gave the king the right to establish Swazi courts, to prescribe their rules of procedure, and to establish courts of appeal - all subject to ratification by the British resident commissioner.
A similar transition to autonomy - full-fledged indirect rule - and then to independence was attempted in South Africa when the National Party came to power in May 1948. The Bantu Authorities Act (68 of 1951) claimed to restore "the natural native democracy" to the reserves by creating a system of councils controlled by chiefs and headmen. For the first time, an autonomous Native Treasury and a Native Administration paid from it - with powers to make rules in a native legislature - were added to the administration of customary law, in Zululand (Natal) and in other homelands. The pace was set in the Transkei in 1956, when the Transkeian Territorial Authority was created, growing over the next twenty years from "self government" (1963) to "independence" (1976). The Transkeian example was emulated in three other instances - Ciskei, Venda and Bophuthatswana - whereas developments in Zululand stopped at the establishment of an autonomous indirect rule regime.
Ironically, it is apartheid that brought to South African natives full-blown indirect rule, that system of control upheld in equatorial Africa as testimony to the true colonial genius of British imperialism; and it was apartheid that tried to keep pace with imperial-style decolonisation, particularly in migrant reserve territories like Swaziland, as the "wind of change" blew across the continent. But that is where the parallel ends, for although indirect rule was successfully reformed in colonies to the north of the Limpopo through a deracialisation of the state apparatus, such a reform was not within easy grasp of South Africa. precisely that special feature in the colonial experience of South African natives, that it had come to be a colony of white settlement - a fact most often summed up in the phrase "settler colonialism" or "internal colonialism" - made such a reform difficult. For the deracialisation of the system of indirect rule would require a reform of both native communities and hitherto white civil society. Entrenched in civil society and state institutions, white privilege set apart South Africa - and, to a lesser extent, Algeria and Rhodesia - from the rest of Africa. To undermine that privilege and deracialise the state would require a struggle of great depth.
