If the aim of British colonizers, Frederick Lugard wrote, was to civilize
Africans ‘and to devote thought to those matters which…most intimately
affect their daily life and happiness, there are few of greater importance
than the constitution of native courts’. Moreover, he argued that only from
native courts employing customary law was it ‘possible to create rudiments
of law and order, to inculcate a sense of responsibility, and evolve among a
primitive community some sense of discipline and respect for authority’.
Britain had not the manpower, the money nor the mettle to rule by force of
arms alone. Essentially, in order to make colonial rule work with only a ‘thin
white line’ of European administrators, African ideas of custom and of law
had to be incorporated into the new state systems. In a very real way,
customary law and African courts provided the ideological and financial
underpinnings for European colonial rule.
In Kenya from at least the 1920s, but especially in the 1940s and 1950s,
administrators struggled with the question of how customary law could best
be used in African courts. Prominent among their concerns was the
codification of customary law, against which most administrators vigorously
fought. British officials believed that reducing African custom to written law
and placing it in a code would ‘crystalize’ it, altering its fundamentally fluid
or evolutionary nature. Colonizers naturally harbored intentions of using
the law to shape society (as Cooper has demonstrated for the Kenya coast)
but a fluid, unwritten law provided much greater latitude to pursue these
goals. It was necessary, as one administrator put it, to allow ‘changing
traditions to meet current altering conditions’.
This case study of Kenya offers a different understanding of the history of
customary law.