African Oral Law and the Critique of Colonial Modernity in The Trial of Jomo Kenyatta
2011; Routledge; Volume: 23; Issue: 1 Linguagem: Inglês
10.1525/lal.2011.23.1.26
ISSN1541-2601
Autores Tópico(s)Global Maritime and Colonial Histories
ResumoAbstractIn his book The Trial of Jomo Kenyatta(1955), author Montagu Slater claims to offer a “fair” and “true” account of the Kenyan nationalist leader’s trial in a British colonial court. However, by including a mere fraction of the 2000+-page trial transcript, Slater amplifies certain aspects of the proceedings, including an instance of literal amplification: at one point, the judge considers whether or not an audio recording of one of Kenyatta’s public speeches to a group of mostly illiterate Kenyans is admissible as documentary evidence. In this moment, the question is asked: what, according to the law, is a “document,” particularly when the culture in question is an oral culture? This essay situates Slater’s representation of this question, and the court’s answer, in the context of African oral law, conflicts between orality and literacy in colonial Kenya, and the war with Mau Mau, the militant liberation movement that Kenyatta was accused of leading. Slater’s text ultimately offers, through selective amplification, a crucial critique of colonial law, showing how its claims to modernity are undermined by its inability to keep up with its own narrative of progress, whereas African “traditions” freely adapt to and, thereby, redefine modernity in a moment of intense political, cultural, and legal crisis.Keywords: colonial lawcursecrisis of modernitydocumentelectronic cultureevidenceKenyaKenya African Union (KAU)Jomo KenyattaKikuyuliteracyMau Maunonfictionoathsoralityoral lawQueen against Kenyatta and others (1952)Montagu SlaterState of EmergencyThe Trial of Jomo Kenyatta (1955)traditional law Notes1. Kenyatta was born in the 1890s (the exact date is unknown) in Gatundu, Kenya. His early education was in Scottish Mission schools, and in the 1920s, he joined the Kikuyu Central Association (KCA), a political organization that petitioned the British Government to recognize the rights of the Kikuyu people, particularly with respect to land issues. In 1929, the KCA sent Kenyatta to London to negotiate directly with the British Government, and he remained there, except for brief visits to Kenya, until 1946 . While there, he studied anthropology with Bronislaw Malinowski at the London School of Economics. At the outset of World War II, the Kenyan government banned KCA, and it was replaced by a new nationalist organization, the Kenya African Union (KAU). KAU embraced Kenyatta as its leader upon his return to Kenya after the war, and it was during his tenure as KAU’s leader that Kenyatta was arrested and tried for managing Mau Mau. Mau Mau was a militant outgrowth of KAU. Many of the younger members of KAU were dissatisfied with the moderate politics of the Kikuyu leadership and, thus, galvanized around a few of those who felt that direct and even violent action was necessary. See David Anderson, Histories of the Hanged: The Dirty War in Kenya and the End of Empire (New York & London: Norton, 2005), 35–43. [Google Scholar]2. From the dust jacket synopsis of Montagu Slater, The Trial of Jomo Kenyatta (London: Secker & Warburg, 1957 [1955]). [Google Scholar]3. Slater is best known as a cofounder of The Left Review and its original editor. Additionally, he famously wrote the libretto for Benjamin Britten’s opera Peter Grimes (1945), which opens with a court inquest over the death of Grimes’ apprentice and is set in a seaside village. Interestingly, Britten’s other opera dealing with law and set at sea is an adaptation of Billy Budd (1951). This time, however, the libretto was written by Eric Crozier and E. M. Forster, whose novel A Passage To India (1924) is another colonial narrative concerned with the forms of the law.4. I recognize the problems inherent in the term “tradition” in contexts like this where, through contact with colonial culture, African “traditions” are not always what they seem. Many change, some remain the same, and others are complete fabrications. Eric Hobsbawm and Terence Ranger’s The Invention of Tradition (Cambridge: Cambridge University Press, 1992) [Google Scholar] has been useful in this regard, and I thus use the term “tradition” tentatively, with an awareness of its complications but also with a recognition that, for my purposes, it continues to serve a useful function: namely, to identify those practices and beliefs that colonial modernity was supposed to displace or supersede in some way.5. Walter Ong, Orality and Literacy: The Technologizing of the Word (London & New York: Routledge, 2001), 69. [Google Scholar]6. Stephen L. Bishop, Legal Oppositional Narrative: A Case Study in Cameroon (Lanham, MD: Lexington Books, 2008), 3. [Google Scholar]7. Id. at 3.8. Alison Dundes Renteln & Alan Dundes, eds., Folk Law: Essays in the Theory and Practice of Lex Non Scripta, vol. 1 (New York & London: Garland Publishing, 1994), 1:395 [Google Scholar]. “Folk law” is their term for what I am calling “traditional law” and, as they recognize, is variously identified as “customary law, unwritten law, common law, indigenous law, living law, primitive law, etc.” (xiii). They define folk law as “a socially defined group’s orally transmitted traditional body of obligations and prohibitions, sanctioned or required by that group, binding upon individuals or subsets of individuals (e.g., families, clans) under pain of punishment or forfeiture.”9. This phenomenon is, of course, not limited to Africa as Renteln and Dundes’s collection demonstrates. In fact, there have been periods in European history when laws were expressed in and through cultural narratives and oral traditions rather than codified statutes and constitutions. See, for example, Herman Baltl’s “Folklore Research and Legal History in the German Language Area” in Renteln & Dundes’s collection (id. at 397–406) [Google Scholar]; also see Robert Cover, “Foreword: Nomos and Narrative,” 97/1 Harvard Law Review 4–68 (1983) [Google Scholar], in which he describes a connection between the epics of early European societies and their laws.10. Okot p’Bitek, Artist, the Ruler (Nairobi: Heinemann, 1986) [Google Scholar], 39. For more on Okot and the relationship between law and poetry in his work, see Peter Leman, “Singing the Law: Okot p’Bitek’s Legal Imagination and the Poetics of Traditional Justice,” 40/3 Research in African Literatures 109–28 (2009). [Google Scholar]11. The Kikuyu are the most populous ethnic group in Kenya and the primary group at the center of the Mau Mau conflict. Kenyatta first wrote his study as a thesis under the tutelage of Malinowski at the London School of Economics.12. Jomo Kenyatta, Facing Mt. Kenya (New York: Vintage Books, 1965 [1938]), 183. [Google Scholar]13. Id. at 185.14. Id. at 186.15. Id. at 189.16. Ong, supra note 5, at 71.17. Ngũgĩ wa Thiong’o, Penpoints, Gunpoints, and Dreams (Oxford: Clarendon Press, 1996), 37. [Google Scholar]18. Ngũgĩ was, of course, writing in the postcolonial period, and although The Trial of Dedan Kimathi (with Micere Githae Mugo, 1976) deals with the Mau Mau period, Ngũgı˜’s concern is with the legacy of colonial law within the postcolonial nation-state. In my study of Ngũgı˜’s work in my dissertation, I demonstrate how oral culture continues to offer authors such as Okot and Ngũgı˜ means of critiquing the contradictions and oppressive measures of postcolonial law, which bears the residues and, at times, exact form of the colonial legal system. See Peter Leman, “Literature, Law, and Oral Culture in East Africa” (PhD diss., University of California, Irvine, 2011). [Google Scholar]19. The colonial recognition of traditional African law is also evident in the development of the system of “indirect rule,” by which African “customary law” was permitted to function within limited, rural jurisdictions while Western-style law was administered in urban areas. The reasoning, as articulated most influentially by Frederick Lugard, was that Africans were less likely to reject colonial rule if the revered customs and traditions that ordered their societies were integrated into the administrative structure. See Lugard, The Dual Mandate of British Tropical Africa (Hamden, CT: Archon Books, [1922] 1965) [Google Scholar]. The problem was that British administrators often assumed too much in identifying this or that practice as “customary” or “traditional,” frequently selecting and codifying practices arbitrarily or inventing traditions out of thin air if circumstances required it. Additionally, problems with the system arose as “traditional” chiefs were appointed to oversee customary courts when such offices were not recognized by or even, in some cases, previously existent within a given society. These colonial-appointed chiefs came to exercise a great deal of power and were often distrusted by the people whose customs they were supposedly there to protect. Furthermore, whereas indirect rule supposedly preserved African customs, the “laws” were often written down for the purposes of practical codification, and according to a report following a Judicial Advisers Conference in 1953, the ultimate goal was to help customary law evolve so that, in time, there would be “a fully integrated system administering one law for all.” See “Native Courts and Native Customary Law in Africa,” Judicial Advisers’ Conference, special supplement to the Journal of African Administration 21 (1953) [Google Scholar]. On the history of indirect rule in East Africa, see also H. F. Morris & James S. Read, Indirect Rule and the Search for Justice (Oxford: Clarendon Press, 1972) [Google Scholar]. On the creation of customary law, see H. F. Morris, Some Perspectives on East African Legal History (Uppsala: Scandinavian Institute of African Studies, 1970) [Google Scholar]; Terence Ranger, “The Invention of Tradition in Colonial Africa,” The Invention of Tradition, eds. Eric Hobsbawm & Terence Ranger (Cambridge & New York: Cambridge University Press, 1992), 211–62; [Google Scholar] and Martin Chanock, Law, Custom, and Social Order: The colonial experience in Malawi and Zambia (Portsmouth, NH: Heinemann, 1998) [Google Scholar]. On the abuses of power by colonial chiefs, see also Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, NJ: Princeton University Press, 1996), 22–23, 53–54. [Google Scholar]20. Jacques Derrida, “Force of Law: ‘The Mystical Foundation of Authority,’” in Deconstruction and the Possibility of Justice, eds. Drucilla Cornell, Michel Rosenfeld, & David Gray Carlson (London & New York: Routledge, 1992), 21. [Google Scholar]21. Id. at 34.22. Six defendants were convicted in the original trial, but one of them was acquitted on appeal.23. The meaning of the term “Mau Mau” is one aspect of the phenomenon that has contributed to scholars’ mystification in that its precise meaning and origin have been difficult to determine. Different interpretations have been offered, with some suggesting lexical affinities with the Kenya Africa Union’s acronym (i.e., KAU) and others arguing that Mau Mau was the popular name given by the government to add to the organization’s mysteriousness and, thus, people’s fear of it. For a discussion of some of these theories, see John Lonsdale, “Mau Maus of the Mind: Making Mau Mau and Remaking Kenya,” 31/3 The Journal of African History 393 (1990). [Google Scholar]24. Id. at 404.25. Anderson, supra note 1, at 279.26. Lonsdale, supra note 23, at 404.27. See Carl Rosberg & John Nottingham, The Myth of Mau Mau: Nationalism in Kenya (New York: Praeger, 1966). [Google Scholar]28. The conservative position maintained, essentially, that Africans were inherently primitive and that Mau Mau’s violent acts and evil rituals—the famous initiation “oath” that was widely and luridly described by the press during the Emergency—were simply evidence of their irredeemably barbaric natures, the only solution to which was, as Lonsdale reports, a “[hardened] polemical frontier between white civilization and black savagery.” Lonsdale, supra note 23, at 404.29. Id. at 405.30. J. C. Carothers, The African Mind in Health and Disease (Geneva: World Health Organization, 1953) [Google Scholar], and The Psychology of Mau Mau (Nairobi: Colony and Protectorate of Kenya, 1954). [Google Scholar]31. In the United States in 1851, for example, Dr. Samuel A. Cartwright, a physician from the South, diagnosed slaves who tried to run away with “drapetomania,” the disease of wanting to be free. See Cartwright, “Report on the Diseases and Peculiarities of the Negro Race,” Health, Disease, and Illness: Concepts in Medicine, eds. Arthur L. Caplan, James J. McCartney, & Dominic A. Sisti (Washington, DC: Georgetown University Press, 2004), 33. [Google Scholar]32. Lonsdale, supra note 23, at 410 (emphasis added).33. The horrific irony of this is that, whereas the detention camps were supposedly based on this angelic and altruistic theory of “guided transition,” the reality proved that the war brought out the worst in many of the colonialists and loyalist Africans (id. at 410). The conditions of the camps and the atrocities committed against prisoners were so severe that their discovery by the outside world toward the end of the Emergency is thought to have rapidly accelerated Britain’s withdrawal from East Africa. See Anderson, supra note 1, at 313–27, and Caroline Elkins, Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya (New York: Henry Holt & Company, 2005). [Google Scholar]34. Anderson, supra note 1, at 280.35. Bruce Berman, “Nationalism, Ethnicity, and Modernity: The Paradox of Mau Mau,” 25/2 Canadian Journal of African Studies 183 (1991). [Google Scholar]36. Slater, supra note 2, at 160.37. Anderson, supra note 1, at 68.38. Slater, supra note 2, at 26–27.39. Id. at 27.40. Kenyatta, supra note 12, at 214.41. See Anderson, supra note 1, at 67 –68.42. Louis Leakey, Defeating Mau Mau (London: Methuen, 1955), 77, 84, 85 [Google Scholar]. Leakey was born in 1903 in Kenya and raised in Kikuyu country, where he was actually initiated as an elder in the Kikuyu tribe. Considered a pioneer in the study of human origins, Leakey trained in archaeology, paleo-anthropology, and social anthropology at Cambridge University and was extremely prolific, publishing 216 books, monographs, articles, book reviews, and letters over his lifetime. Described by Lonsdale and Berman as Kenyatta’s intellectual rival, Leakey, significantly, was initially appointed as the court translator in Kenyatta’s 1952 trial but stormed out in a rage after being accused by the defense of deliberately mistranslating witness testimony to the prosecution’s favor. See John Lonsdale & Bruce Berman, “Louis Leakey’s Mau Mau: A study in the politics of knowledge,” 5/2 History and Anthropology 143–204 (1991) [Google Scholar]; and Slater, supra note 2, at 116–17.43. Robert B. Edgerton, Mau Mau: An African Crucible (New York: The Free Press, 1989), 134–35 [Google Scholar]. This is actually a relatively tame description of the alleged Mau Mau depravities. Edgerton goes on to describe how other government-produced reports went into even more detail about shockingly bizarre sexual and bestial practices used in Mau Mau oathing, which I won’t reproduce here. The irony of such allegations is that, because they were typically exaggerations or pure fabrications, the horrifying narratives actually originated in British, not African, minds.44. Id. at 135.45. Slater, supra note 2, at 42.46. Denis Nowell Pritt was an English barrister and a politician with the Labour Party, well known for his pro-Soviet sympathies. He was an MP from 1935 to 1940 and 1945 to 1950. In addition to defending Kenyatta, Pritt in a later trial represented Julius Nyerere, the future president of Tanzania. See The Autobiography of D.N. Pritt, vol. 3, The Defence Accuses (London: Lawrence & Wishart, 1965–66). [Google Scholar]47. Anderson, supra note 1, at 66 .48. Slater, supra note 2, at 165.49. Id. at 165 (emphasis added).50. Id. at 167 .51. Kenyatta, supra note 12, at 214.52. Ong, supra note 5, at 136.53. Slater, supra note 2, at 181.54. Id. at 181–82.55. Id. at 182.56. Id. at 183 (emphasis added). The Indian Evidence Act defines a document as follows: “‘Document’ means any matter expressed or described upon any substance by means of letter, figures, or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.” It then lists several illustrations of documents: “A writing is a document. Words printed, lithographed or photographed are a document. A map or plan is a document. An inscription on a metal plate or stone is a document. A caricature is a document.” See The Indian Evidence Act, No. 1 of 1872, 2nd ed. (Madras: Higginbotham & Co., 1873), 4. [Google Scholar]57. Quoted in Slater, supra note 2, at 249–50.58. Isak Dinesen, Out of Africa & Shadows on the Grass (New York: Vintage, 1989 [1937]), 236. [Google Scholar]59. Dane Kennedy, Islands of White: Settler Society and Culture in Kenya and Southern Rhodesia, 1890–1939 (Durham, NC: Duke University Press, 1987), 46. [Google Scholar]60. Id. at 46 –47 (emphasis added).61. Elspeth Huxley, Settlers of Kenya (Westport, CT: Greenwood Press, 1975 [1959]), 20. [Google Scholar]62. Dinesen, supra note 58, at 206 (emphasis added). Dinesen’s use of the word “atavism” is particularly ironic here as it suggests for her a certain aristocratic prestige, whereas during the Mau Mau period it came to denote the African’s retreat into the darkness of primitive and savage superstitions. Slater’s suggestion, I contend, is that the charge of atavism directed at Mau Mau is, in fact, a projection of the actual atavism, or rejection of modernity, that characterized colonial rule since its beginnings.63. Id. at 207–8.64. See, in particular, Elkins, supra note 33.65. Jomo Kenyatta, Suffering Without Bitterness: The Founding of the Kenya Nation (Nairobi: East African Publishing House, 1968), 189. [Google Scholar]66. See Mamdani, supra note 19.
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