- Imperial Justice: Africans in empire’s court by Bonny Ibhawoh
At the heart of British imperial governance lay a tension between the universalist claims of British law and order and the need to accommodate and reenforce colonial difference. Ideological and practical considerations dictated the creation of hybrid legal systems in the colonies that theoretically dispensed British justice while allowing for so-called Native customs and customary law, so long as they were not “repugnant” to British morality. How this pluralism should function in practice was a source of perennial contestation, making the courts sites for what Bonny Ibhawoh calls the “adjudication of colonial difference” (4). Ibhawoh examines this process by studying cases brought before the Judicial Committee of the Privy Council (JCPC), which sat in London, and the next lower courts in British Africa, the West African Court of Appeals (WACA) and its East African equivalent (EACA). These three courts have been largely neglected by scholars, but as Ibhawoh notes, it was appellate judges who arbitrated how and to what extent Indigenous laws could be incorporated into British colonial jurisprudence. Appeals to these courts, thus, represented hard-fought contests between colonial officials, judges and African people over the social and political structure of the colonies, with empire-wide ramifications.
Imperial Justice provides readers with a general overview of the appeals courts from their foundation to their eclipse, but Ibhawoh’s analysis is centered on those “cases that epitomize the tensions between imported English law and indigenous customary laws” and the social and political contexts that surrounded their adjudication (20-21). Many of these appeals resulted from criminal trials involving some question of Native custom, but there were also civil suits, particularly land claims, that demonstrated similar tensions. Colonial courts were notoriously stacked against the colonized, but the appellate courts were intended to act as detached arbiters of colonial legality. Moreover, an appeal to the JCPC represented an appeal to the benevolent and impartial justice of the monarch, and this could not be an entirely hollow promise. The appellate judges understood that their remit was not only to dispense justice as they understood it but also to ensure the appearance of justice in the eyes of the colonized, which made these courts a key venue in which African people could challenge the colonial system from within.
Because of the costs of appealing cases to this level, the courts were largely available only to elites, though that included both “traditional” authorities as well as the colonial educated elite. Of particular interest, though, are those instances when a community believed a case to be of such importance that they collectively funded an appeal, whether it was because the case affected the community as a whole or had particularly grave consequences for one of their number, such as a capital trial. Equally enlightening are the moments when what constituted customary law came into dispute. In one murder case, Rex v Ndembera, a female witness’s testimony contradicted the explanation of custom provided by the Native assessors, men recognized by the courts as authorities on the traditions of their people. The lowercourt judge ignored the woman’s testimony, but, remarkably, the EACA bench overturned his ruling on these grounds. As Ibhawoh stated, the judges “seemed keenly aware of the possibility of patriarchal and generational biases in the opinions of the male assessors” and concluded that the “accused must be given ample opportunity to challenge the opinion of court-appointed assessors on native customs” (79-80). Rulings such as this created minute openings through which non-elites could challenge the colonial social order, but as the aim of these courts was the appearance of impartiality, such challenges struck at colonial authority while upholding broader imperial bonds.
When it came to JCPC appeals, this unifying side of the court’s work reached well beyond Britain’s African colonies, because the precedents the Privy Council established applied to every colony in the empire. In fact, under the common law system, these precedents are still applicable in Britain’s former colonies, even though the vast majority have abolished the right...