Law, Colonialism and Conflicts over Property in Sub-Saharan Africa

Abstract

In one of classic studies of law colonial Africa, Max Gluckman remarked that Lozi, like all Africans, appear to be very litigious. Almost every Lozi of middle age can recount dispute after dispute which he has been involved.2 Gluckman's study of Barotse, based on fieldwork carried out 1940s, was concerned above all with demonstrating logical paths of ruleoriented decision making which Barotse chiefs followed resolving disputes. He attributed Lozi litigiousness to complex (multiplex) relationships of kinship, status, gender, and authority that he suggested long pre-dated colonial encounter. By essentializing ethnic character and then conflating ethnic identity and litigiousness, Gluckman obscured very profound ways which colonialism ushered an era of accentuated conflicts. Africans throughout nineteenth century were pulled into worlds of ever increasing complexities. The end of slavery, transition to legitimate commerce, and European conquest created demand for new products and intensified conflicts over access to resources, labor, and power. In particular, the ever-deepening commitment to cash cropping and a money economy accelerated conflict over resources and their allocation.3 Already engaged, as Sara Berry has pointed out, at tail end of nineteenth century in struggles over power and terms on which it was exercised, African societies early twentieth century were wracked by contestations over property colonial situations marked generally by their increasing differentiation and immiseration.4 Throughout continent there was a rapid, but highly uneven, transformation of rights over property of all forms-land, labor, cattle, food, dependents-and considerable debate and conflict over nature and disposition of those rights. Seen historical perspective, conflict and change characterized African societies, rather than deep and enduring traditions so favored by contemporary European observers. Yet trying to establish regimes of order and orderliness, words favored by colonial administrators contradistinction to barbarity they attributed to indigenous societies, European conquerors sought to discover perduring tradition upon which to legitimate their own rule. Customary law and traditional authorities fit their needs well, part because they meshed with European notions of African changelessness and because they reflected legitimating rhetoric used by European rulers over their own people, especially that of British crown.5 Custom and tradition, however, were words and concepts rooted not a timeless past but a constantly changing context of early colonial period. In his study of rice growing Gambia, Michael Watts has demonstrated that late precolonial and early colonial periods were characterized by an enormous variety and proliferation of property transactions that colonial officials could neither track nor understand. For these officials, Watts argues, route to explanation and legitimation lay attempting to identify a relatively