Colonial rule and the ‘legal factor’ in Ghana and Lesotho

Abstract

This article compares and contrasts the development of the legal systems of two British colonies that occuped almost opposite ends of the colonial judicial continuum: what in colonial times were known as the Gold Coast and Basutoland. Both became British colonies in the late nineteenth century, but followed considerably different paths to that status. In the case of the Gold Coast it followed centuries of contact between Europeans and the coastal peoples in this area of West Africa. In the case of Basutoland incorporation into the European world was a nineteenth-century phenomenon and far more rapid. Nevertheless, at the turn of the century, as indirect rule became the officially accepted wisdom as to how colonial peoples should be ruled, administrators in both colonies sought to make the chiefly order an integral part of the colony's administration and award its chiefs judicial responsibilities. In the Gold Coast, however, chiefly courts remained in competition with a highly developed British-style Supreme Court. In Basutoland there were basically only chiefly courts until late in the colonial period, which applied Sesotho customary law that was written down as the Laws of Lerotholi in 1903. The two-tier judicial system of the Gold Coast allowed far more contestation and was far more flexible and responsive to social changes than was the case in Basutoland. Incremental changes over time meant that the judicial system evolved far more smoothly than in Basutoland. When in the latter colony changes did not come ‘from above’ in the 1940s, there was a serious outbreak of ‘medicine murders’ that many observers felt was directly related to the chiefs losing their judicial role. Also, the colony's high court ruled against the validity of the Laws of Lerotholi in the controversial ‘Regency case’. Apart from being a return to comparative analyses of the impact of colonial rule on former African colonies, much in vogue in the 1960s, this study is an attempt to modify the emphasis on ‘cleavage’ and the ‘coercive’ that has characterised historians' approach to the study of colonial law.