Aman W. Kabourou

Curiously buried in an obscure corner of the East African Standard of December 23, 1913, was an item of considerable symbolic import for all the inhabitants of the then British East Africa Protectorate. The remote location that piece of news occupied in the newspaper thus betrayed the existence of deep social resentments. For, that furtive attempt to quietly shunt the matter into oblivion symbolised on the one hand, the white community’s calculated hostility towards any challenge to its exalted position in society, and on the other, it revealed the settlers’ relative powerlessness in relation to larger questions of British imperial considerations.

Would that relative powerlessness then explain the community’s subversive behaviour? What did its members hope to gain from this quasi censorship of the news? Could they block the item completely, if so why didn’t they? These and related questions are hard to answer. Yet. it is imperative that some explanation for the situation be provided if a broad perspective necessary for better appreciation of the forces that were at work in this early period of Kenya’s colonial history is to be achieved.

The item in question referred to some Maasai men’s law-suit against the colonial government for violation of their land rights. At the time the news item appeared in the papers, the matter, or Civil Case No 91, was being appealed through the Privy Council in London, following an adverse ruling by the High Courting Mombasa which had thrown it out on technical grounds.

The matter concerned the government’s decision of 1911, which the plaintiffs charged, hid violated a pledge made to them earlier. For, under that earlier accord, or the 1904 Agreement, the Maasai had been allotted two reservations on both sides of the Uganda railway with the stipulation that ownership of that land, ‘shall be enduring so long as the Masai as a race shall exist ... (and) that Europeans or other settlers shall not be allowed to take up land in the settlement. ‘The latter arrangement, or the 1911 agreement, on the other hand, deprived them of one of those reservations situated on the Laikipia plateau, and compelled them to move and be concentrated in the other one south of the Mau escarpment which they, moreover, considered to be inferior. Hence the plaintiffs contested the deprivations, both qualitative and quantitative, that they claimed to have suffered as a result of that broken promise.’

The suit named as defendants three colonial officials including the Attorney General, R.M. Combe, as well as twenty Maasai men who had collaborated with the government, among them Segi, the Maasai Paramount Chief. The defendants were accused of having conspired to cause both physical and economic suffering on the Maasai resulting from the forced move.

Mr. justice Hamilton, of the Mombasa Municipal Court, saw the matter differently, and dismissed the case with. costs on the ground that legally, any transactions that had taken place between the Maasai and the government were considered to be treaties and not civil contracts, hence outside the Court’s jurisdiction. He defined a treaty as being a pact between nations, and, a nation as distinguished from other people by language, origin, or government. In short, as an assembly of free men.

Hamilton concluded that the colonial government’s conduct in formulating and implementing the move amounted to fan act of state entered into between parties possessing sovereign rights, which can only be enforced by diplomatic representations or in the last resort by war.’ No doubt, such an interpretation of the relationship between a subject people and their overlords leaves a lot to be desired. The question in assessing that construction then becomes whether the judge was an avid imperialist who would contrive to bend the law to suit his designs or, had he simply been going by the book?

That the judge was an imperial servant is but self-evident. Yet, this point in and by itself is not a clear indication of how much discretion he, or any other colonial official for, that matter, had in the implementation of directives in the field. Is it conceivable then, that under the circumstances, the second option, going by the book, may have been his only choice? For, nebulous as Hamilton’s interpretation of the law might appear, clearly, there seems to be no logical reason why he should have ruled otherwise. Both from the point of view of professional interest, as well as due to the lack of precedent in such matters, the courts could only do so much.’

And if this be any indication of the constraints placed upon the colonial administrator, similar arguments as those employed by Hamilton were used later by justices Morris Carter, Bonham. Carter and King Farlow, of the Court of Appeal for Eastern Africa, when backing the lower court’s decision. Fortunately, the judges’ utterances in their efforts to snarl the matter in legal gymnastics had an unsolicited effect. Whether advertently or not, their rationalisations opened a Pandora’s box by calling into question the legal premise for colonialism. For although in the short run the rulings helped the government to win that particular battle, the real war had thus just begun.

Those rulings helped to intensify hard feelings within the already polarised society, thus giving a chance for the issue of sovereignty to be debated in public for the first time in the history of British East Africa. Consequently, the determination of whether or not that opportunity was seized and utilised effectively, is the subject of this paper. To come to that conclusion, the study will analyse the different aspects pertaining to sovereignty in order to, hopefully, help explain some of the contradictions embedded in British colonial policy in that period.

Many of the writers who have commented on the Maasai Case and its aftermath have invariably concluded that the whole thing had been a sham from the very beginning, and that the government had been pressured by the settlers to deprive the Africans of their rights over the land; One has to admit that such assertions are more or less true. Yet, such sweeping claims do have their drawbacks. For, although the argument is technically correct, this line of reasoning if not carefully analysed, ends up trivialising the issues by restricting them to discussions of sporadic flare-ups only, thus leaving out the important question of sovereignty which apparently all the judges made considerable use of.

True, on a superficial level, such arguments would seem to be good enough to explain away the numerous inconsistencies encountered in this episode. Surely, it requires no special skills to see that the main bone of contention between the Africans and their colonisers had been land. But, that fact in itself does not say why by 1911 the Maasai should have had to appeal to the British for land ownership rights. Or even how the British had acquired the right to the land there in the first place. Consequently, even though it is true that possession of land did, more than anything else, determine the relationships between the races politically and economically in this case it does not follow automatically that this was a struggle between the Maasai on the one hand, and on the other, a colonial government beleaguered by the selfish settlers bent on promoting their self-interests only.4 Otherwise, this would amount to saying that colonialism in itself was alright except when ruthless meddlers like the settlers showed up and began to infringe upon the Africans’ rights.

Obviously, to construe the issue so narrowly is tantamount to passing the trees for the forest. And, frankly, such an approach would be a mere emphasis on myths and speculations. Therefore, though the fact that the Maasai were being evicted from areas they claimed to have preferred to those which they detested may have been too tempting as to lure the commentators to cry foul play, it would be erroneous, and maybe, even ahistorical, for the historian to accept these criticisms without further clarification.

To be fair, it should be conceded that, criticism of the colonial government’s bias in favour of the settlers’ interests are in order. Likewise the recognition given to the Maasai for being the first group ever in the protectorate to challenge those biases by resorting to the law for redress of their grievances, is also well deserved. Although, perhaps, therein also lies the misguided temptation to denounce one group as the villain and uphold the other as martyrs. SO, to avoid the pitfalls inherent in the fallacy of questionable cause and the like, which leads to unfair stereotyping,’ this paper will restrict itself to the examination of the evidence, or lack of, as presented by both sides in the case with an eye towards uncovering the cause(s), methods, as well as the functions of colonial usurpations.

To begin with, it should be noted here that the British East Africa Protectorate underwent major spatial, administrative,. and conceptual changes at about this time. Between June 1895, when the British government declared a protectorate over this territory and April 1912 when the Maasai were removed from the Laikipia to the southern reserve, the administration of this territory had changed from the jurisdictions of the Foreign to that of Colonial Office.

Coupled with that move was the introduction of the office of Governor to replace that of the Commissioner. Along with these changes came the Uganda railway together with an addition of Uganda’s eastern provinces of Kisumu and Naivasha to the protectorate.’ Thus, since it is in these new additions where most of the disputed land lay, it is reasonable to conclude that, spatially, perhaps more than anything else, the completion of the Uganda railway to Kisumu by 1901 had been a major factor in creating the land problem.

Indeed, one might wonder about what would have been the Maasai’s fate had they remained under Uganda’s jurisdiction where large scale white settlements did not occur? for, the Uganda railroad ushered in an era of unprecedented white settlement beginning in 1903. The government supported this new development primarily because they wanted to recoup the expenses incurred in building it. The cost had mushroomed from an originally estimated 2 million to 5 � million British pounds! No doubt also, that the government saw settlers as essential to the economic development of this newly opened territory at this time because of the scattered indigenous populations they encountered there.

To be sure, a certain amount of depopulation resulting from famines, plagues, and tribal depredations had preceded the coming of the Europeans. But that demographic imbalance was only temporary. Thus for a short while at least, some of the best land in the country seemed almost devoid of people. In their haste, colonial officials sought to take advantage of that temporary situation by inviting into the country larger numbers of immigrants than what a realistic assessment would have allowed. These administrators thus hoped to play the newcomers against the indigenous population by arbitrarily allocating scarce productive land in favour of the settlers!

Harmonious resolutions of such matters as tribal land tenure systems and lifestyles as reflected in the differences in usage between pastoralists and agriculturalists; and above all, what would be the beat land policy in view of the labour requirements of the settlers, were crucial to the balancing act needed to meet the demands of these disparate and potentially antagonistic groups. Perhaps if a survey, either demographic or topographic, had been made at the time, it could have helped. Apparently none of the above concerns got enough attention except for that of the government’s overriding desire to recover their expenses as expeditiously as possible. 10

The biased allocation of this supposedly unclaimed land, would, before long, lead to frictions between the Africans and the settlers on the one hand, and. on the other, between these two antagonists and the colonial government. So that, even if should be shown that the administrators had not consciously set out to deprive Africans of their land, as some of their defenders have argued, unfortunately, that is exactly what their actions accomplished. For dearly, should any readjustment be necessary following this official blunder the contenders would have to be the Africans against all the foreigners. To that extent then, it should be accurate to categorise both indigenes and strangers as having been merely expendable pawns in the hands of the authorities. Thus it is rather taxing to one’s imagination to view settlers as the power behind the throne that they are said to have been. 11

One thing remains clear, however. The government’s reckless rush to ensure their property at the expense of everyone else did become, a wedge that continued to bedevil future developments.

Thus, such had been the atmosphere when in 1903 Sir Charles Eliot, His Majesty’s Commissioner, undertook to formulate a land policy which culminated in that first Agreement of 1904 between his successor, Sir Donald Stewart and the Maasai." By then Eliot had already resigned from his position following a dispute over his policies with the Secretary of State for Foreign Affairs. Nonetheless, that agreement which embodied his ideas and, by extension, those of the whole imperial establishment became the basis of the reservation policies that the Maasai plaintiffs and their lawyers sought to uphold in this law-suit. 13

According to Eliot’s report on the matter, there were two key points that he felt needed to be addressed. He wrote, ‘in the discussion on this question two things seem to me to have been confused: 1. The right of the Maasai to inhabit particular districts (and) 2. Their right to monopolise particular districts and keep everybody else out’."’ Although later on in his discussion he acknowledged their rights on the first item, he unequivocally refused to concede the second point. He argued that, as a matter of expediency it might, sometimes, be best to make reserves. But, as a matter of principle, he simply refused to come to terms with the idea ‘that wandering tribes had a right to keep others, and superior races’ out of large tracts merely because they had acquired a habit of straggling over far more land than they could utilise. The customs of the Maasai may be interesting to anthropologists, he added, ‘but morally and economically they seem to me to be all bad, and it is our duty, as it will also be to our advantage, to change them as soon as is practicable’. 15

He further pointed out that tribes closely akin to the Maasai, near Kilimanjaro and elsewhere, were engaged in cultivation. Thus he found it desirable that they too, should follow the same example. Moreover, he castigated them for straying about with large herds of inferior cattle and sheep, which he claimed were reported to be of little use to the owners and of none at an to anyone else. He finally called for the break up of the tribes as far as possible as a way of discouraging assemblies and circumcision ceremonies which, he charged, ‘culminated into raidings’. 16 With that objective in mind, he vowed- to work towards inducing them to settle in small villages among Europeans, by whom they would be employed as cattle guards.

Eliot called on his colleagues to use his recommendations in formulating the ideal solution to the question. But, claiming to recognize the dangers posed by the ‘stupidity of the mesai’, coupled with the brutality of the settlers as being potential threats to the realisation of his scheme, he ordered a reservation plan worked out on a contingency basis. More importantly, he wanted that reserve to be close enough to white settlements for the purpose of social control. Thus he conveniently chose the Kedong Valley and the country to the south of it as the suitable locations. Finally, Eliot agreed half-heartedly, to let them live in the neighbourhood of Kinangop or of the Southern Mau, ‘only if it was absolutely necessary.’

To expel any misconceptions about this stand on the matter, he wrote, ‘I never contemplated, as some people seem to have thought, that the Masai should have all the land to the south and west of the line in the Rift Valley ... that seems to me too much’. 17

Thus despite the supposedly good intentions of the 1904 pact, it is obvious that it had not been designed to protect the Maasai or any other tribe, for that matter. On the contrary, a close examination of that document from the point of view of its originator reveals the irrefutable fact that it had been a temporary device to contain the Africans pending a more thorough-going policy.

There is ample evidence to show that the Laibon, O-Lenana, and his advisers had been induced to agree, on behalf of their tribe, to vacate some of their land and re-group. in the areas designated by Eliot under the auspices of the so-called 1904 Agreement. As it turned out, the government did not honour their pledge. For although it lasted for almost seven years, the settlers, perhaps because they understood the transitory nature of that arrangement, were already pressing for its abrogation well before its formal demise and replacement in 1911, so that the Maasai could be moved once again." The result of this pressure to move them, when coupled with the mismanagement in the implementation of the second move itself, occasioned considerable damage to property. Consequently, the plaintiffs, Ol Le Njogo and seven others, challenged the legality. of the 1911 Agreement. 19

Their lawyers, A. Morrison and A.D. Home, brought an action for breach of the earlier agreement on the ground that the compact was a civil contract which was still subsisting. Furthermore, they charged that the new pact had not been made with those Maasai capable of binding the whole tribe. They also demanded an indemnity of five thousand British pounds for damages. These included 1. The wrongful confiscation of some cattle and 2. Against R.M. Combe, the Attorney General, for non-compliance with one of the 1904 accord’s provision in which the government had promised to build a road connecting the two reserves. 20

As it has already been shown above, both the administrators and the judges agreed that the courts had no Jurisdiction over the matter since the two agreements, according to the official version, were treaties not contracts. They also claimed that the alleged confiscation of property was Can act of state.’ Hence, the courts conclusion that both complaints were not cognisable in a municipal Court. The Privy Council, where the case had been appealed as a final resort, dismissed it on other than legal grounds. It ruled against the case because the plaintiffs had failed to secure Costs. 21

It is worth noting here, that, strange as it may seem, this lawsuit never really challenged the legality of the government’s powers to acquire land. Instead, the lawyers accused the government for failure to honour the 1904 agreement .12 For some reasons, perhaps better known to themselves, the advocates refrained from querying the rationale for colonial land policies and thus were restricted to questioning the motives behind the 1911 compact. Indeed, one wonders, that, if after accepting the first accord as the basis for equitable land distribution in the protectorate, the Maasai had not, in fact, given up the rights to their heritage, and were left to wrangle over technicalities which would inevitably prove tautologous. In other words, they, through their advocates, had consented to the instrument of ‘agreement’ as a legitimate bargaining tool.

Apparently, even most critics of these Maasai moves found no inconsistency in this respect. They too, appear to be concerned more with the matter of upholding the 1904 agreement than with the real issue of sovereignty. Needless to say, the acceptance of that false premise could only lead to serious contradictions in the caw. And as it turned out the advocates were left with little or no substantive arguments except the contention that the Maasai signatories to the 1911 compact were unqualified to act on behalf of the whole tribe. yet, paradoxically, the lawyers never bothered to either clarify or establish the criteria for those whose actions could be acceptable as legally binding to their fellow men. Instead, they wanted to unilaterally bestow that legitimacy on their clients, the plaintiffs, even though the twenty men who co-signed that new pact were, supposedly, the officially recognised leaders.

Even if it were true that the signatories to that first contract were the true leaders of their people, would it be wise to conclude that their decision to do so was sound, hence beneficial to their people? A close examination of the 1904 agreement itself suggests otherwise, it shows an inbuilt structural flaw that would doom to. failure all attempts at honouring any of the provisions. For despite its reassuring clause," no concrete arrangements as to enforcement, preservation or even mention of the responsible parties for its implementation are anywhere to be found in the text. Consequently, neither the government nor. the Maasai themselves bothered to honour many of its stipulations .14

Moreover, the rationale behind that first accord was misleading from the very beginning. For it sought to prescribe a static solution to an obviously dynamic society destined for rapid changes. The attempt to pass the compact as a vehicle for preserving tribal unity even when the avowed aim ‘had been to break up the tribe is but one example of the numerous contradictions to be found in this episode. 11 As to just how that unity could be maintained under the circumstances it is simply impossible to imagine.

And as noted above, the biggest mistake that the administrators committed was to issue land under the assumption that it had been unoccupied. In so doing, they overlooked the possible future effects of improved medical and veterinary care, diet, and social and physical mobility ‘within the protectorate. Also, changes in political considerations both within the protectorate as well as in England itself. Sure enough, it happened that changes in all of the above mentioned factors proved to be the rule rather than the exception.’ Consequently, one can reasonably argue that given these changes the Maasai’s concerns had very little to do with the abrogation-of the first compact as their advocates charged, since that agreement would, of necessity, have had to be modified any way! Instead the appropriate question had to be: whence came the power of the Crown to arbitrarily determine the Maasai’ prerogatives?

That being the issue, it may further be justifiably argued, that the wrongs visited upon the -Maasai were simply symptomatic of the malaise affecting the overall colonial structure. For clearly, the vicissitudes evinced in British rule in the East Africa protectorate are a classic example of the famous axiom, ‘might makes right.’ The very acquisition of this territory is testimony to the fact that imperial considerations took precedence regardless of the consequences."

This lawsuit itself is a case in point. It is clear that the Maasai had been coerced into accepting the 1904 agreement which-served two purposes for the authorities. It provided a very shaky basis for the tribe’s stability while at the same time it underscored Eliot’s plans to use it as a too] for social control .18 Having seen the attitude of the architect of the reservation policy, one can not help but wonder why anyone would want to consider his motive to be reasonable. Far worse, would be for any one to view the derivative compact as the basis for equitable land distribution. Yet, strangely enough, the advocates chose that very ‘agreement’ as the cornerstone of their case against the government. In fact that choice is made even more dubious especially because Eliot’s association of tribal rituals with raiding, nullifies any lingering hopes as to the government’s intention to honour the provisions of the said accord, particularly with regard to building a road to connect the two reserves. 19

By choosing to contest the legality of the 1911 accord the advocates, in effect, side-stepped the real issue in the case. For whether they did this deliberately or not, their contention played right into the government’s hands. At this point, all that the officials had to do was to simply proclaim the government’s good faith. They could easily claim that indeed, and contrary to the plaintiff’s charges; they were responding to major. ecological and spiritual crises in the Laikipia reserve. They could argue that it had been Olenana who initiated the second move for fear of disruption between the two sections of the tribe." The authorities could furthermore claim that they had. the interest of the tribe at heart by correctly showing that between 1904 and 1908, they had willingly co-operated in extending the northern reserve four times in order to accommodate the growing populations, of both man. and beast.

As regards the 1911 move, they could easily have won the debate by arguing, among other. things, that as opposed to the 4,500 square miles on the Laikipia, of which not more than 1,200 were well watered, the Maasai were being transferred to an area covering 6,500 square miles in the south, of which 1,500 could be described as some of the best stock land in the country. For the two major rivers in the region, the Mara and Uaso Nyiro, flowed through the remaining 5,000 acres of this tsetse fly free land, thus providing an extra reservoir of the badly needed water in the area. 31

On the charges that the government had reneged on their promise to build a road to connecting the two reserves, they could simply counter-charge by claiming that such conduct had been mutual. They even had enough statistics to show that well up to one quarter of the Maasai had failed to comply with the first move and having ‘so neglected to carry out the terms of the agreement, as largely to destroy its meaning’ .12

All the above mentioned facts notwithstanding, -the government, on their part, chose to further mystify the matter. Rather than debating the merits and demerits of the case, they defended their interests through evasion of any substantive legal discussion by constantly invoking the ‘act of State’ and ‘non cognisance’ doctrines. Clearly, and as it has already been alluded to elsewhere in this paper, any discussion of questions regarding the roots of sovereignty by the colonisers would only be an exercise in masochism. For it is conceivable that both the advocates and the administrators may have known all along that apart from the potential embarrassment to -the imperial rationalisations inherent in such a debate, not much would have been accomplished by engaging in it any way!

Both the advocates and the magistrates were acutely aware that the law, when applied in a colonial setting had simply been a tool at the disposal of the dominant political and economic groups. The poignancy of that reality could hardly be suppressed. The lawyers, in particular, were always reminded of it by the mere fact that theirs had been the task of constantly adjusting the law to fit the circumstances.

The deliberate misrepresentation of the issues in the Maasai Case proceedings is a clear illustration of that fact. For as opposed to the plaintiffs’ dubious claim to be the true representatives of their people, the defendants were legally recognised to be so by the government itself. And since the issue on this point is who among them could legitimately represent the whole tribe, one would expect that the advocates would have taken advantage of the government’s obvious -weakness. They knew very well that the so-called chiefs were not a traditional institution in this tribe even though the authorities used them as such. For there is no doubt that the Maasai signatories to both pacts had been persons whom the Commissioner and the Governor, respectively, had appointed for that purpose. 33 Thus, one wonders why the lawyers chose not to challenge that premise!

It could be argued that hid the lawyers advised their clients to sue as individuals, the judges would have been forced to either consent to the plaintiffs’ -demands to remain on the Laikipia, *or, to acknowledge the courts’ powerlessness in relation to imperial designs. For, as opposed to the law’s vacuousness in regard to the difference between treaties and contracts, its stipulations vis-�-vis the native subjects are very clear. As individuals, the Maasai could hope for redress in the courts of law. 31 Yet, by opting for the impossible task of trying to uphold the 1904 agreement, the advocates curtailed their own room for manoeuvring. As a result, they were left with the unenviable task of questioning the defendant Maasai’s mandate to make compacts binding to the whole tribe, while at the same time unilaterally demanding- that same power for their clients.

The lawyers must have known that they would have to substantiate any claims for legitimacy that they made on behalf of the plaintiffs. Failure to do so could clearly turn those assertions into mere absurdities. Worse still, their own integrity as competent advocates was on the line. Yet, they went ahead and made wild charges against the defendants without worrying about possible negative repercussions. Or, did they perhaps stand to lose more by pursuing the matter to its logical conclusion than they would by appearing to be incompetent? Was there an inherent conflict of interest that they sought to conceal?

As has been shown elsewhere in this paper, the advocates, the magistrates, and the prosecutors were acutely aware that when applied in a colonial setting, the law, had simply been a tool at the disposal of the dominant political and economic groups. For theirs had been the task of constantly adjusting the legal system to the needs of the politicians and administrators." In other words, when push came to shove, none among them saw the function of the law as- being impartial, but as a lever for making the way smooth for the usurper. 36

Clearly, then, it should be fair to conclude that, under the circumstances, the negative outcome for the plaintiffs’ case had been an open secret all along. This point is of particular importance in this discussion as it singles out one of the major contradictions mentioned earlier. For it casts severe doubts as to the supposed altruistic intentions of those colonial agents who sought. to champion the African’s cause. This is especially so because, the lawyers, who more likely than not, understood the futility of this case, charge and received substantial legal fees for their efforts in this will-o-the-wisp.

Even more intriguing is the obvious irrelevance of that legal-exercise. The possibility of a negative outcome having been so clear from the very beginning, one can not help but wonder why the government felt they had to parley with the Africans to do what they wanted in the territory. Why did they concede to hear the case and in the course of doing so jeopardise the very foundations of imperialism? Lawyers on both sides, perhaps more than anyone else, knew very well that the much touted Foreign jurisdiction Acts of 1843 and 1890, upon which the rationale for territorial aggrandisements depended were vague. They were also, or at least should have been, aware of the fact that the derivative Orders in Council of 1897 and 1899 had been proclaimed for one purpose that of providing for limited consular jurisdiction in various parts of Africa. Yet, in East Africa, these orders had gradually come to be used for other purposes. Here they became the legal basis for the assumption of general governmental authority to discharge the obligations imposed by the General Acts of the Brussels and Berlin Conferences .17

Consequently, until 1902, all extensions of power through the orders in Council were extralegal. The first -one of these, that of 1897, dealt mainly with the foreigners rights in relation to indigenous courts. And although some of its measures purported to apply to Africans, still, there were considerable doubts as to its legal standing. Thus the second order, that of 1899, which attempted to bolster the former by providing, among other things, ‘that unless a contrary intention appeared, regulations made under the Order in Council of 1897, should apply to all natives of the protectorate’," simply deepened the ambiguity.

That ambiguity was partly removed, later, by the Order in Council of 1902, which empowered the Commissioner to make ordinances for the peace, order and good government of all persons and matters. And, to establish a High Court with full criminal and civil jurisdiction in the territory." Yet, inspite of all these legal manoeuvres, English law somehow managed to ingeniously construe the relationship between subject peoples and their overlords as being distinct and foreign to each other. This even though theoretically, as of 1902, the status of the Africans had changed from aliens to protected persons, with the rights and obligations that entailed.

Clearly then, and as opposed to attempts to portray it in the biblical metaphor of ‘David versus Goliath’, the real significance of the Maasai case lies in it being the first test case of these ambiguous British legal theories as they related to East Africa.’

Predictably, those British subjects closely associated with the colonial venture would be reluctant to probe deeply. into touchy questions pertaining to it, hence their willingness to gloss-over real issues in proceedings against the state. The most perfunctory reasonings often contradictory were used to provide the grand precedents needed to justify official behaviour. For example, in order to qualify the agreements as treaties, the courts claimed that the Maasai were ‘subjects of their chiefs or their local government whatever form that government may in fact take’. Furthermore they argued that the tribe still had some vestigial sovereignty left in it, despite the Crown’s laws which provided otherwise."

After establishing that sovereignty point, albeit vaguely, the judges proceeded to rule that treaties could be made with them, even though such compacts would not be not governed by international law. Precisely what sort of autonomy the chiefs held no one bothered to clarify, even though some officials admitted openly that the Maasai were entirely subject to the administrative and judicial control of the government. 12 Nevertheless, authorities went on to suggest that if there still was an independent ruler, or chief, he, or she, might claim to be exempt from the jurisdiction of the High Court."

True, the Ordinance of 1907 which superseded all prior similar measures did declare that nothing in the law should affect the power of the Governor to recognize the jurisdiction of tribal chiefs. But this new fiat could hardly be capable of sanctioning such exemptions. For although, officials touted the measure as a recognition of a jurisdiction pre-existent to the Orders in Council, hence a remnant of sovereignty remaining in the Maasai, unfortunately it could be effective only if the governor felt comfortable with its provisions. More importantly, only those chiefs who were appointed and therefore in the pay of the government could be recognised as tribal leaders. To many, this would sound like the proverbial logic (or illogic?) of asking the fox to guard a chicken coop!

A case in point relates to the judges’ considerations of several Indian cases in their efforts to find precedents for this issue. They concluded that where an individual held his office or territory by way of a grant from another power an agreement made with him is a civil contract. But, where the leader is independent, a pact made between him and a foreign ruler or his representative, is a treaty. 44

If strictly adhered to, this construction should have been enough to decide the case in favour of the Maasai plaintiffs. For clearly, and despite the concurrent jurisdictions claims, Olenana and his advisers held their offices by way of grants from another power as represented by the governor 45 That fact automatically turned into civil contracts any bilateral documents they signed. Since this question formed the plaintiffs’ main argument, the law was promptly modified to allow the court to legally deny them a victory.

To. effect that outcome, the judges employed some of the most perplexing arguments of the imperial legal Jargon to make a distinction between a treaty and a civil contract. In this instance, the court claimed to have found no provision of the law which authorised certain members of a tribe to enter into a civil contract which would bind all the members unless such members formed a central authority in the nature of a government which ‘it might be presumed some elements of sovereignty would exist’.’ In other words, saying that the court saw the Maasai signatories in both incidences as being, in fact, government employees, hence lacking autonomy to effect such. an accord.

But in so doing, the judges had in effect, reversed themselves. For, in the final analysis, their arguments boiled down to a position whereby, contrary to their earlier interpretation, they now accepted sovereignty as a precondition for making civil contracts. And since the Maasai signatories in both incidences were not independent rulers, the two agreements of 1904 and 1911 could not be such compacts. yet strangely enough, these humble subjects were deemed qualified, under the law, to conclude treaties with their ruler! For those same agreements were henceforth elevated to a treaty status and therefore uncontestable. And, as a coup de grace the court disqualified itself as unfit to enquire into whether a treaty had been made with the right persons or had been made under duress. 47

By renouncing its investigatory powers, the court ruled out any lingering doubts as to the partiality of its decisions. Thus, inevitably, the charges of tortious liability were muffled and swiftly dismissed in yet another tautologous dispensation. The judges cited the case of Buron v. Denman for precedent, they argued:

If the law as laid down in the case of Buron v. Denman ((1848) 2 Ex. 167) applies in its entirety to acts committed in East Africa against a native of a Protectorate it would seem that a native has no rights which he can enforce in a court of law m* respect of any kind of tortious act committed upon the orders of or subsequently ratified by the Government; he has no remedy against the Crown in tort and. if he brings an action against an individual, the latter can plead orders of the Government whereupon the act becomes an act of the Government and one for which the only remedy is an appeal to, the consideration of the government; the other remedies of diplomacy and war which might be available to a foreigner the subject of an independent state, not being available to a native of a protectorate.48

The obvious conclusion from this citation is that either the Maasai did not know what they were doing when they supposedly signed the said treaties, or the British were the untrustworthy partners who knew all along that their law would be incapable of providing remedies should any violations of the pacts arise. Otherwise, it seems as though it would require a great amount of stupidity on their part to contract for such a slippery protection. One wonders, indeed, if these legal interpretations could serve as an illustration of possible differences between the law as made or sanctioned in England, and its practice abroad. Was the English legal system meant to be equally subscribed to in the British East Africa colony as it were in Britain?

Such a distinction is significant in this case specifically because of the aspersions cast on the unusually cordial relations between the administrators and settlers." Since practice in, the colonies depended to a large extent on the governor’s outlook, it should be safe to conclude that individual capriciousness did colour considerably the manner in which law enforcement was carried out. yet even though this flexibility made it possible for an official to abuse his powers now and then, usually, he had to operate within certain confines. Such conformity would, in the long run, have the effect of tempering upon the impact of personal excesses. This, in turn, would affect the degree of leverage that officials in the field would have over important questions like social equity.’

The resignations of two governors, Sirs Charles Eliot and Percy Girouard, over land policy issues, proves this contention conclusively. For their removals resulted in little, if any, meaningful alleviation of the Maasai’s concerns. Eliot’s departure, for example, did not halt their incarceration into the reservations. And neither did Girouard’s result in stooping the tribe’s eviction from the Laikipia." All this when it had seemed obvious that the reason for their recalls had been their strong identification with settler interest! This, to many, would be proof enough that land distribution there was in fact controlled directly from London and not Nairobi.

That Britain had illegally occupied the. East Africa protectorate prior to introducing her law to sanction what had already taken place, there can be no doubt. The only puzzling thing is, why would she bother with trying to dress up the matter in legal niceties after the fact? In view of the contradictions mentioned above, one can only hope that this probably had to do with the force of habit. For, imbued with a constitutional tradition, Englishmen could not help but react in a predictable way. Only this time, their belated attempts at legitimisation misfired ‘primarily’ because of their preceding callousness. By 1911, this insensitivity towards others had resulted in increased mistrust by the Africans. Hence it should be reasonable to conclude that hopes of salvaging their tarnished racial image had prompted them to accept the case for consideration, but material realities forced them to short circuit the proceedings.

The practical realities of colonial administration were at best chimerical since it forced its servants to live in a make-believe world of now you see it now you don’t variety. One moment an official would appear formidable, only to fall into disgrace a moment after. And surely, in that fleeting period he might dole out favours to his cronies. But those benefits could not last long if for any reason whatever they came into conflict with Whitehall’s long range objectives.

Obviously, then, one should not let oneself be fooled by the display of this apparent but unreal power. For it was nothing but efforts by the frustrated officials to maintain appearances. Hence, only by understanding the roots of this constant tension within the governing circles is it possible to isolate and analyse the contradicting imperatives which acted as strong bond between the lawyers, administrators and the judges throughout this trial. For the truth of the matter is that all the Europeans there sought to perpetuate white supremacy in whatever capacity they could.

To choose from among the ranks of the imperialists in the hope of identifying the good guys as opposed to the bad guys, is to miss the point by a very wide margin indeed! And those who choose to discuss the Maasai Case under the assumption that routine squabbles among the colonialists were enough to justify a conclusion that those who took up the case were genuinely interested in, or were capable of bringing about any meaningful change, seem to be the unwitting victims of the fallacy of misplaced concreteness.

About the Author

A.W. Kabourou is a Ph.D. candidate in History, West Virginia University, Morgantown, WV 26554, U.S.A.

Footnotes

1. Ghai, Y.P., et al., Public Law and Political Change in Kenya: A. Study of the Legal Framework of Government from Colonial Times So the Present, Nairobi: Oxford University Press, 1970, p. 20.

3. Ibid., pp. 22 = 23. See also, judgement, 25 December, 1913, C.O. 533/107 - 119; Sandford, G.R. London: Waterlow & Sons Ltd., 1919, pp. 192-99.

4. Dilley, M.R. British Policy in Kenya Colony, 2^nd ed.; New York: Barnes , & Nobel, Inc., 1966, pp. 250-254. Also, this question should be viewed more as a matter of a humbling colonial policy bound to hurt any one in its way, than a struggle between the Maasai and the government. In this way, it could then be possible to see the settlers themselves as victims of the same problem. For a feel of the settlers’ sense of being duped into coming to Kenya where not enough preparations for their settlement had been made, see Sorrenson, M.P.K. Origins of European Settlement in Kenya Nairobi: Oxford University Press, 1968. Furthermore, this is a point of great significance, since the Maasai themselves had been a favourite of the colonialists. Because. of their efforts in helping the British to subjugate the other tribes, they became the only native group in the territory to be provided with an agreement. And apart from these land transactions, the British seems to have, by and large, left them alone - i.e., there were no punitive actions against them despite their raiding proclivities.

On the Maasai’ service to the British see also, Boahen, A.A., ed., Unesco General History of Africa, VII: Africa Under Colonial Domination 1880 - 1-935, London: Heinemann Educational Books Ltd, 1985,p.155.

Dilley, British Policy pp. 214 - 215. In here Dilley points out that though other groups were forced into wage slavery, the Maasai were not.

5. This conclusion derives from the author’s fear that some commentators have tried to present the Maasai Case in a biblical analogy of David v.’ Goliath struggle unjustifiably.

9. Ibid., see, also, Dilley British Policy, p. 16. Also, Wa-Githumo, Mwangi. Land and Nationalism in East Africa, Dissertation New York University, 1974, Ann Arbor; UMI, 1974. 74 - 25, 026. pp. 238-239.

9. Ross, McGregor W. Kenya From Within: A Short Political History, London: Frank Case & Co. Ltd., 1 1968, pp. 41 - 43.

11. Harlow, et. at., ed. History of Emit Africa, pp. 53. These land policies had further repercussions in labour issues.

13. Sandford, And Administrative and Political History, pp. 26 - 30.; see also, Harlow, et. at., ed. History of East Africa pp. 35.

25. This fact is apparent from the number of signatories to both agreements. In fact it is a contradiction in itself, since if the Maasai were a single unit as such, no more than one person, Olenana, and later Segi, would be necessary for signing the so-called treaties. For a complete list of the signatories we Sandford, An Administrative and Political History, pp. 181 -185.

27. Harlow, et. al., History of East Africa, pp. 62. Even though this passage refers to Uganda specifically, still, it is germane to Kenya also. It reads: ‘Secondly, the Foreign Office in Britain .. . . was interested in procuring a foothold in the Upper Nile Valley from which, whenever it might be necessary, they could watch French and Congo advances from the West. Beyond these them were no engrossing British interests, and these two alone determined the arena of British activity between 1894 and 1909.’

28. This conclusion derives from suggestions to be found in Eliot’s report calling for the dividing the Maasai as a way of emasculating them.

30. Ibid., p. 31. This part refers to what the administrators claimed to have been O Lenana’s so called death injunction.’ See also series C.O. 533 which contains many fragmentary comments relating to this episode.

40. Based on the discrepancy between what the British claimed their intentions for African welfare to have been, as opposed to what they did, the Maasai Cast was truly the first opportunity for the African to find exactly where he stood within the colonial scheme of things. It is the contention of this paper that the plaintiffs’ lawyers failed in their duties by not identifying and thus pursuing what was in the best interest of their clients,

42. Ghai, Public Law and Political Change in Kenya, Chapter 1. See also, trial transcripts in Sandford, An Administrative and Political History, pp. 206.

44. From trial transcripts in Sandford, An Administrative and Political History, pp. 207. See also Arens W., ed., A Century of Change in Eastern Africa, The Hague: Mouton Publishers, 1976, pp. 169.

48. Ibid., ‘Captain Denman of H.M. Navy, seized and destroyed certain barracoons of the plaintiff, a Spaniard, on the West Coast of Africa, The action was , not to be Justified by any law or treaty but was subsequently Approved by the Crown and its held that it was a wrong no longer actionable.’ See also Ghai, Public Law and Political Change in Kenya, pp. 22.

49. Row, McGregor W. Kenya From Within: A Short Political History, London: Frank Case & Co. Ltd., 1968, Chapter VIII.

51. Sandford, An Administrative and Political History, This a comprehensive source of the history of the Maasai reserves, from their conception, inception to the aftermath. See also, Wa-Githumo, Mwangi. Land and Nationalism in East Africa, Chapter VII.

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