Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (African Studies)

302 Pages·1985·208.95 MB·English

by  Martin Chanock

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LA W, CUSTOM AND
SOCIAL ORDER
The Colonial Experience in
.Malawi and Zambia
MARTIN CHANOCK
SeniorLecturerin Legal Studies
LaTrobe University, Melbourne
Therightojthe
UniversityojCambridge
toprintandself
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wasgrantedby
Henry Vl/lin /534.
The Universityhasprinted
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CAMBRIDGE UNIVERSITY PRESS
CAMBRIDGE
LONDON NEW YORK NEW ROCHELLE
MELBOURNE SYDNEY
Published by the Press Syndicate ofthe University ofCambridge 1
t
The Pitt Building, Trumpington Street, Cambridge CB2 1RP
32East 57th Street, New York, NY10022, USA
10 Stamford Road, Oakleigh, Melbourne 3166, Australia
©
Cambridge University Press 1985
First published 1985
Printed in Great Britain at the University Press, Cambridge
Library of Congress catalogue card number: 84-23207
British Library Cataloguing in Publication Data
Chanock, Martin
Law, custom and social order: the colonial
experience in Malawi and Zambia. - (African
studies series; no. 45)
1. Customary Law- Malawi- History
2. Customary law- Zambia- History
1. Title II. Series
340.5'2'6897 [LAW]
ISBN 0521 30137 8
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Contents
Preface page
IX
Acknowledgements
Xl
PartI Law, anthropologyandhistory // 1
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-0socialandlegalhistoryinCentralAfrica 3
2 Africanlawandanthropologists;{ 25
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41'l'>3 Africanlawandlawyers 48
PartII Rightandwrong 69
-44 ThelawgiversinCentralAfrica: socialcontrol ).' 71
5 Witchesandordeals 85
~-.
6'I Thecourtsandthepeople: lawinactionI,': 103
... Africansandthelaw 125
PartIII Menandwomen 143
~,\ 8 The lawgiversinCentralAfrica: marriageandmorality .. 145
\\', 9 Slavesandmasters· 160
\)'(9)
. Thecourtsandthepeople: lawinactionII / 172
P~9
192
Africans, lawandmarriage .'~. ~<:~}..f..,t..<.
-
...P0artIV Discussion . 217
WritingAfricanlegalhistory 219
Notes 240
Bibliography 272
Index 282
Vll
11 lIT~[·
Preface
Any historicalstudydepends onitssources anditistherefore appropriate to
introduce this book with some comments on the materials on which it is
based. The bookdevelopedfrom, andlatercameto dominate, aninterestin
the social and economic history ofthe colonial period. My original concern
in using the colonial archives was simply to see what could be learnt about
this history byusing the survivingrecords ofthe localcourts, and thefiles of
the Legal and Judicial departments, which were usually passed over by
researchers in favour of the more general Secretariat files and District
reports. Itwas only after leavingGentralAfricain 1973thatI began"to think
seriouslyofusingmymaterialsforthemorespecificpurposeoflegal history.
I began also with the intention of concentrating on the Eastern districts of
Zambia and the neighbouring areas of Malawi across the colonial border.
For Malawi many ofthe local records for the period prior to 1920 had been
destroyed by fire so I had to faU back on central administration records,
though I was able to use both local and central rcordsfor the period 1920to
1931, the date up to which the Malawi archives were open at the time ofmy '"
access to them. In the absence of full local records for my chosen area I
broadenedthestudytoincludetheprotectorateasawhole, thoughelements
, i
ofthe original focus remained. For Zambia the pattern of archival use was
different. Local records were available and these were supplemented by
central administration files prior to the 1930s. In addition I was able to
extend the Zambian side of the study to the late 1940s by having work on
specific topics done for me in the Zambian archives. I tried to provide a
counterpart to this on the Malawian side, by reading, in the Public Record
Office in London, the reports submitted for these years to the Colonial
Office. In rounding off developments towards the end of the high colonial
period I have mined, as a primary source, the published works of the
researchers of the Rhodes-Livingstone Institute.
These preliminary comments raise a major point deserving of comment.
The records I have used have been those of the colonisers' instruments of
government, and the observations of auxiliaries ranging from missionaries
to anthropologists, This means that the work substantially concerns those
I
IX
Preface
aspects of African law, life and dispute-processing which come within the
ambit ofcolonialinstitutions. But the history ofthe colonialperiod must be
writtenasastudyofinteraction, andthisisquintessentiallysuchastudy. The
rulers' misunderstandings ofAfrican life are, in this context, not misinfor
mation, but the primary material out ofwhich the history was created. This
isan areaofcolonialruleinwhichAfricansplayedanimportantpart, having
to participate within the forms ofcolonialinstitutions and having to express
their meanings in the language of the coloniser. The problems and limita
tions involved in construing meanings and concepts expressed in English,
and in confining one's considerations to activities within colonial institu
tions, areplain. Yettheydonot, I think, seriouslyaffectanunderstandingof
the customary law, precisely because it develops within this interaction of
ruler and ruled. .
There are other major directions which a book about law during the
colonial period in Africa migh~ have attempted. One, which.the nature of
the sources excludes, is a study of dispute-processing and normative con
cepts beyond the reach of government. But there are enOrmous problems
confronting this sort ofstudy in all societies, and it may be fanciful to try to
recapturea history, asopposedtoamythology, ofthislevelofAfricansocial
processes for muchofthe colonialperiod. Itbecomesplain, nonetheless,as
one reaches more recent times, that the model of a dual legal system - of
British law, and African customary law - is inadequate. Beyond the
customarylawrecognisedinthis modelis anotherlevel, the developmentof
./
whichmaywell betakingplaceinoppositiontobothlevelsofthestate'slaw.
But this would be the subject of another book.
1have also not attempted to describe systematically the content of the
colonial legal system, on either its 'customary' or its statutory side. For the
former it is because the formal contents are without meaning and only
become comprehensible as ideas about, and instruments of, social power
when considered as 'law in action'. For the latter a full-scale study of the
contentsofthecolonialstatutebook,withitsmultifariousregulationoflocal
life, its inbuilt racial discrimination, andits legal expression of the exploita
tive economics of colonialism, particularly in the areas of land and labour
law, would again be another book.
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Acknowledgements
While I have worked on this book I have received many expressions of
interestandencouragement, andwordsofadvice. Ishallnotlistnameshere,
butthosewho are beingherebymostgratefullythankedwillknowit. Special
mentionshould bemadeofProfessorJamesRead, forinitialinspirationand
~ubsequent practical assistance, of Janette Gosstray for her work and
patience in the preparation of the manuscript, and of Peter James for his
acute editing.
I am grateful also to the Governments of Malawi and Zambia for
permission to use their National Archives, to the staffof those institutions,
and to the University of Malawi and La Trobe University for financial
support. While working on the book I had the support of a fellowship from
the Inter-University Council, and academichospitality from the University
ofSussex, the UniversityofTexas atAustin, andthe SchoolofOriental and
African Studies. In the way of further acknowledgements, one is to my
students at the University ofMalawi, throughwhomI became interestedin
Central African history. A second is to Robin Palmer and Landeg White,
who sent me materials from the National Archives of Zambia which
transformed the nature of my study and to whom most special thanks are
due. A third is to Kate Neale, and my gratitude for her understanding of
African historyandher criticalfaculties is expressedthrough the dedication.
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