The Resurgence and Expansion of Tanganyika’s Judiciary, 1945–1958

Feingold, Ellen R.

doi:10.1007/978-3-319-69691-1_4

Ellen R. Feingold⁴

Part of the book series: Cambridge Imperial and Post-Colonial Studies Series ((CIPCSS))

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Abstract

This chapter explores post-war changes to the judiciary and structure of the court systems inside and outside of Tanganyika that enhanced the jurisdiction and stature of the colonial judiciary. The size and geographic reach of the professional judiciary expanded and the administration took the first steps towards integrating the dual court systems, giving colonial judges a role in deciding appeals from Native Courts. This chapter asserts that as the movement for independence in Tanganyika developed in the late 1950s, the administration turned to the judiciary for help in containing political activity and attempted to use the High Court and its judges to reframe the legacy of British colonial rule of the territory.

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Notes

1.
A.H.M. Kirk-Greene, On Crown Service: A History of HM Colonial and Overseas Civil Service, 1837–1997 (London, 1999), p. 59.
2.
J. Iliffe, A Modern History of Tanganyika (Cambridge, 1979), p. 376.
3.
See Article 76 of the Trusteeship Agreement. It is reprinted in: B.T.G. Chidzero and the Royal Institute of International Affairs, Tanganyika and International Trusteeship (Oxford, 1961), pp. 263–268.
4.
M.L. Bates, ‘Tanganyika under British Administration, 1920–1955’, D.Phil. thesis (University of Oxford, 1958), p. 546.
5.
Iliffe, A Modern History, p. 436.
6.
Ibid., p. 356.
7.
J.D. Graham, ‘Indirect Rule: The Establishment of Chiefs and Tribes in Cameron’s Tanganyika’, Tanzania Notes and Records, 77 (1976), p. 9.
8.
On the status of tenure of colonial judges prior to the twentieth century, see: J. McLaren, Dewigged, Bothered, and Bewildered: British Colonial Judges on Trial, 1800–1900 (Toronto, 2011), especially pp. 16–18; J. McLaren, ‘Navigating the Scylla of imperial politico-legal aspirations and Charybdis of colonial micro-politics in the British Empire’, in S. Dorsett and J. McLaren (eds.), Legal Histories of the British Empire: Laws, Engagements, and Legacies (New York, 2014), p. 16.
9.
The metaphor of the judiciary as a plant was inspired by Morris’ description of English law as a ‘hardy plant in an alien soil’. H.F. Morris, ‘English Law in East Africa: A Hardy Plant in an Alien Soil’ in H.F. Morris and J.S. Read, Indirect Rule and the Search for Justice: Essays in East African Legal History (Oxford, 1972), p. 73.
10.
A list of those who testified is available at the end of the Report, see: The Bushe Report, pp. 100–102. Few Africans, however, were given the opportunity to offer their views on the administration of justice. The Africans who were able to give testimony to the Commission were primarily chiefs and headmen, whose elite though subordinate position within the judicial system should be taken into account when assessing the opinions they offered.
11.
The Bushe Report; Great Britain, Commission of Inquiry into the Administration of Justice in Kenya, Uganda, and the Tanganyika Territory in Criminal Matters, Minutes of Evidence and Memoranda Submitted to the Commission(London, 1934). A number of works examine the Bushe Commission in detail, see, for example: H.F. Morris, Evidence in East Africa (London, 1968); Y.P. Ghai and P. McAuslan, Public Law and Political Change in Kenya: A Study of the Legal Framework of Government from Colonial Times to the Present (Nairobi, 1970), pp. 139–147; H.F. Morris, Some Perspectives of East African Legal History (Uppsala, 1970), pp. 24–25; D. Anderson, ‘Policing, Prosecution and the Law in Colonial Kenya, c. 1905–39’ in D. Anderson and D. Killingray (eds.), Policing the Empire: Government, Authority and Control, 1830–1940 (Manchester, 1991), pp. 188–191; D. Anderson, ‘Kenya, 1895–1939: Registration and Rough Justice’ in D. Hay and P. Craven (eds.), Masters, Servants, and Magistrates in Britain and the Empire, 1562–1955 (London, 2004), pp. 498–528; E.R. Feingold, ‘Power, Procedure, and Punishment: The Administration of Criminal Justice in East Africa c.1933’, M.Sc. thesis (University of Oxford, 2007).
12.
On the codes introduced to East Africa in 1930 see: H.F. Morris, ‘A History of the Adoption of Codes of Criminal Law and Procedure in British Colonial Africa, 1876–1935’, Journal of African Law, 18 (1974), pp. 13–17; C.C. Roberts, R.P. Nicholson, and G.S.J. Orde-Browne, Tangled Justice: Some Reasons for a Change of Policy in Africa (London, 1937), pp. 48–55.
13.
H.F. Morris, ‘The Reception and Rejection of Indian Law’ in H.F. Morris and J.S. Read, Indirect Rule and the Search for Justice: Essays in East African Legal History (Oxford, 1972), p. 119.
14.
The Bushe Report, p. 2. Respectively: A.D.A. MacGregor, W. MacLellan Wilson, P.E. Mitchell, J.B. Griffin, and C.E. Law.
15.
There was one exception. Justice C.E. Law noted a reservation to the Report’s findings on the admissibility of evidence and confessions to police. The Bushe Report, p. 99.
16.
Griffin was appointed the Chief Justice of Uganda, Law the Chief Justice of Northern Rhodesia, and MacGregor the Chief Justice of Hong Kong.
17.
The Bushe Report noted that all witnesses were in agreement that there were problems with the courts in Tanganyika. The Commission made the claim that conditions in Tanganyika were worse than in Kenya and Uganda. The Bushe Report, pp. 9, 14, 16.
18.
A. Russell, ‘The Administration of Justice in East Africa’, Journal of Comparative Legislation and International Law, 17 (1935), p. 11.
19.
The Bushe Report, pp. 8–9.
20.
Ibid., p. 10.
21.
Ibid., pp. 13–14.
22.
For comparison, the Commission recommended increasing the size of the High Court Benches of Kenya and Uganda by one judge each. Ibid., p. 96 (Rec. v).
23.
Ibid., p. 96 (Rec. vi). The Commission suggested that these trials should take place without reference to the High Court because it would increase delays. Ibid., p. 25.
24.
Ibid., pp. 23, 96 (Recs. viii & xi).
25.
Ibid., p. 96 (Recs. ii & vii).
26.
Morris, ‘English Law in East Africa’, p. 100.
27.
Ibid., p. 102.
28.
Feingold, ‘Power, Procedure, and Punishment’, pp. 1–2.
29.
Ghai and McAuslan, Public Law, p. 146.
30.
The response of each of the three governors was published along with the Report. The Bushe Report, pp. 104–160.
31.
Morris, ‘English Law in East Africa’, p. 100. For instance, the East African governments accepted the Bushe recommendation that there should be a public defender for poor defendants, but could not afford to hire the additional staff and therefore never introduced one during this period. Ibid., pp. 94–95.
32.
Some, such as R. Hamilton, acknowledged the financial implications of the recommendations, but still expressed the hope that the territories would not allow finance to stand in the way of what he believed were necessary and principled changes. R. Hamilton, ‘Criminal Justice in East Africa’, Journal of the Royal African Society, 34 (1935), p. 17.
33.
Unknown, ‘Criminal Justice in East Africa’, The Times, 6 December 1934, p. 4.
34.
Morris, ‘English Law in East Africa’, p. 102.
35.
RHL, MSS. Brit. Emp. s. 415, Ralph Furse Papers, Box 6/7, R. Furse, ‘Legal’, n.d., p. 2.
36.
A.H.M. Kirk-Greene, Britain’s Imperial Administrators, 1858–1966 (Basingstoke, 2000), p. 188.
37.
R. Collins, ‘The Sudan Political Service: A Portrait of “Imperialists”’, African Affairs, 71 (1972), p. 300.
38.
Kirk-Greene, Britain’s Imperial Administrators, p. 188.
39.
RHL, MSS. Brit. Emp. s. 415, Ralph Furse Papers, Box 6/7, R. Furse, ‘Legal’, p. 2.
40.
For example see: H.G. Bushe, ‘Criminal Justice in East Africa’, Journal of the Royal African Society, 34 (1935), pp. 117–128; Hamilton, ‘Criminal Justice’; Russell, ‘The Administration of Justice in East Africa’; Unknown, ‘Criminal Justice in East Africa’; H.R. Hone, ‘The Native of Uganda and the Criminal Law’, Journal of Comparative Legislation and International Law, 21 (1939), pp. 179–197.
41.
Ironically, by the time the Colonial Office and East African Governments began to make some of the changes advocated by Bushe after World War II, he was no longer Legal Adviser but had become an administrator himself: The Governor of Barbados.
42.
TNA (UK), CO 691/191/10, [CO] Scott to unknown [CO], 24 April 1944.
43.
TNA (UK), CO 691/191/10, W.E.F. Jackson to G.H. Gater, 23 August 1944, p. 1.
44.
Ibid.; TNA (UK), CO 691/191/10, unknown [CO] to unknown [CO], 1 May 1944, p. 2.
45.
Justice R.M. Cluer wrote a scathing letter on the state of the administration of justice in Tanganyika to the Colonial Office in 1943, complaining that many of the concerns raised by Bushe remained unresolved. The memo was also signed by two other judges of the High court, Justice G.A.K. McRoberts and Justice M. Wilson, and can be regarded as expressing views held by a significant portion of the High Court at the time. TNA (UK), CO 691/191/10, ‘Memorandum by Mr. Justice Cluer’, 31 December 1943.
46.
TNA (UK), CO 691/191/10, W.E.F. Jackson to G.H. Gater, 23 August 1944, p. 1.
47.
Ibid. The Governor advised the Colonial Office to promote Mark Wilson to Chief Justice outside Tanganyika. He was eventually appointed Chief Justice of the Gold Coast in 1948.
48.
For example, see: TNA (UK), CO 323/1925/3, C. Mathew to K. Roberts-Wray, 15 June [c. 1951]. Administrative officers from the late 1950s described a working relationship between the branches of the government that was typically cordial, but at times strained. One officer summed up the relationship between the administration and judiciary as one where each branch had ‘fairly healthy contempt for the other’. Bryan McCleery, interview with author, Templecombe, 23 April 2009.
49.
These modifications are discussed later in this chapter.
50.
Morris, ‘English Law in East Africa’, p. 103.
51.
Ibid.; J. Cooke, One White Man in Black Africa: From Kilimanjaro to Kalahari 1951–1991 (Thornhill, 1991), p. 44.
52.
TNA, 43474, ‘High Court Circular No. 10 of 1953: The Expansion of the Judicial Department’, 5 August 1953.
53.
Morris, ‘English Law in East Africa’, p. 103.
54.
Tanganyika had approximately seven professional magistrates in 1933, which increased to 32 by 1959. Data from: COL 1933, p. 459; TSL 1959, pp. 217–219.
55.
Two of the four senior resident magistrates in the late 1950s were promoted to the High Court Bench of Tanganyika: D.J. Williams in 1960 and M.C.E.P. Biron in 1961. Magistrates of this rank were also called upon to serve as acting judges in the absence of a judge from the territory. For instance Biron was an acting judge for part of 1957. Tanganyika Territory, Staff List July 1957 (Dar es Salaam, 1957), p. 5.
56.
TNA, 43474, ‘High Court Circular No. 10 of 1953: The Expansion of the Judicial Department’, 5 August 1953.
57.
TNA, 43474, L.M. Heaney to H.R.F. Butterfield, 4 September 1953.
58.
TNA (UK), CO 691/191/10, ‘Memorandum by Mr. Justice Cluer’, 31 December 1943.
59.
RHL, MSS. Afr. s. 592, Mark Wilson Papers, Box 5/1, M. Wilson, ‘Memorandum: Proposals for Post-War Developments and Improvements in the Administration of Justice in the Tanganyika Territory’, 25 May 1945, pp. 6–9.
60.
Ibid., p. 9.
61.
ARJ 1950, p. 6.
62.
TNA, 38775, E.W. Pennefather to R. de Z. Hall, 23 December 1949, p. 1; TNA, 38775, R. de Z. Hall to E.R.E. Surridge, 9 January 1950.
63.
TNA, 38775, E.W. Pennefather to R. de Z. Hall, 23 December 1949, p. 1; ARJ 1951, p. 3.
64.
ARJ 1953, p. 2.
65.
Salaries of the Court are also indications of the administration’s increasing valuing of the judiciary. The actual salaries of the judiciary and their relative salary to the Governor and Chief Secretary, increased during the 1950s. Though Chief Justice Sheridan had increased the salaries of the Court in the 1930s, after World War II the Chief Justice’s salary increased relative to the Governor’s gross salary from 36% of the total value in 1940 to 43% by 1956. The Chief Justice’s salary remained a small amount above that of the Chief Secretary’s, a minor but perhaps symbolically important difference of approximately 100 GBP per year. The value of the Puisne judges’ salary relative to the Chief Secretary increased from 70% of the gross salary to 85% of the gross salary over the same period. Salary data from: COL 1940, pp. 489–490; TSL 1956, pp. 1–2.
66.
ARJ 1954, p. 1.
67.
ARJ 1958, p. 1.
68.
Bodleian Law Library, Cw Gen 510 A258.4a, R.E.S. Tanner, ‘Reflections on the Legal System of Colonial Tanganyika: Failure, Misunderstanding, or Interlude’ in Africa in the Colonial Period Conference, Symposium Number Five: The Administration of Law in British Africa, University College, Oxford, 1–2 July 1980, p. 15.
69.
TNA, 205-78 Vol. II, ‘High Court Circuits—1958’, 23 November 1957.
70.
TNA, 205-78 Vol. II, M.J.R. Coakley to J.S.R. Cole, 20 March 1958.
71.
J.K. Williams, Black, Amber, White: An Autobiography (Worthing, 1990), p. 118.
72.
Ibid., p. 108.
73.
RHL, MSS. Afr. s. 592, Mark Wilson Papers, Box 5/1, M. Wilson, ‘Memorandum: Proposals for Post-War Developments and Improvements in the Administration of Justice in the Tanganyika Territory’, 25 May 1945, pp. 3–4.
74.
Ibid., p. 20; Morris, ‘Native Courts’, p. 135.
75.
RHL, MSS. Afr. s. 592, Mark Wilson Papers, Box 5/1, M. Wilson, ‘Memorandum: Proposals for Post-War Developments and Improvements in the Administration of Justice in the Tanganyika Territory’, 25 May 1945, p. 21.
76.
NACP, Record Group (RG) 59, 4036, [file untitled], American Consulate Dar es Salaam to Department of State, 15 August 1950, p. 1.
77.
J.S.R. Cole and W.N. Denison, Tanganyika: The Development of Its Laws and Constitution (London, 1964), p. 102.
78.
Morris, ‘Native Courts’, p. 160.
79.
The courts did not have jurisdiction in cases where an African was charged with an offence resulting in a death—or for an offence which could result in the death penalty—non-customary marriage disputes, proceedings affecting ownership of land, and proceedings involving claims of witchcraft. Local Courts Ordinance 1951, s 10–13. The ordinance roughly defined Africans as the people of tribes within the territory and surrounding territories, for the exact definition, see s(2).
80.
Local Courts Ordinance 1951, s 10(1).
81.
Ibid., s 15(a).
82.
Secretary of State for the Colonies, ‘Judicial Advisers’ Conference 1953’, Journal of African Administration, Special Supplement (1953), p. 21. Hereafter cited: Judicial Advisers’ Conference 1953.
83.
Morris, ‘Native Courts’, pp. 160–161.
84.
Additional authorities were also given various supervisory and revisionary powers including the local courts adviser (a post created through the ordinance under section 3), district commissioners, and provincial local courts officers (also created under the ordinance, section 3, although none had been appointed as of 1961). Cole and Denison, Tanganyika, p. 105. For details of the powers of administrative officers over the Local Courts see: Local Courts Ordinance 1951, s 4–6 & 34.
85.
Cole and Denison, Tanganyika, p. 103.
86.
Local Courts Ordinance 1951, s 38(1).
87.
Transfers could not, however, go the other direction. On the directions of transfers, see: Regina v. Lamba s/o Mkenga and Regina v. Alute s/o Makiya (1953) 2 T.L.R. (R), 63; Local Courts Ordinance 1951, s 35.
88.
Local Courts Ordinance 1951, s 39(1–2). Judges could be invited to serve on the Governor’s Appeal Board prior to the ordinance, but it was not until 1951 that a judge was officially given a position on and the presidency of the appeals body. On appeals up to 1953, see: Tanganyika, Digest of Appeals from Local Courts (Dar es Salaam, 1953). From 1953 the colonial government published a yearly Digest of Appeals from Local Courts until 1964.
89.
Local Courts Ordinance 1951, s 39(2).
90.
A local courts adviser had the power to revise decisions in Local Courts and the ability to transfer cases. The role replaced the pre-existing Native Courts adviser, which was established in 1948 to assist with the supervision of Native Courts and to serve on the Governor’s Appeal Board. African Studies Branch, ‘A Digest’, p. 22.
91.
A.N. Allott, ‘The Development of the East African Legal Systems During the Colonial Period’ in D.A. Low and A. Smith (eds.), History of East Africa (3 vols., Oxford, 1976), iii, p. 376.
92.
Local Courts Ordinance 1951, s 39(3).
93.
Ibid., s 39(4); J.H. Jearey, ‘The Structure, Composition and Jurisdiction of Courts and Authorities Enforcing the Criminal Law in British African Territories’, The International and Comparative Law Quarterly, 9 (1960), p. 413.
94.
Though advocates remained barred from the Local Courts, they were permitted for the first time in appeals to the Central Court of Appeal under the ordinance. Cole and Denison, Tanganyika, p. 103. While judges were regaining some lost ground in Tanganyika, in Kenya the position of the Supreme Court relative to ‘native’ tribunals was transforming in the other direction. In 1951 Africans’ tribunals were completely separated from the court system under the judiciary. Shadle, ‘African Court Elders’, p. 181.
95.
Judicial adviser was a generic title for individuals appointed to the specific role of supervising and ‘guiding the progress of African courts’. These individuals had a variety of titles and a range of duties depending on the position of the Native or African courts relative to the British courts in their territory. Judicial Advisers’ Conference 1953, pp. 2, 39; W. Twining, The Place of Customary Law in the National Legal Systems of East Africa: Lectures Delivered at the University of Chicago Law School in April-May 1963 (Chicago, 1964), p. 28.
96.
The despatch from the Secretary of State urging African territories to create a judicial adviser post after World War II is reprinted in Appendix B of the report of the conference, and see p. 11.
97.
Ibid., p. 40. The positions were initially supposed to be open to members of the legal and administrative services. Ibid., p. 12.
98.
Tanganyika Territory, Staff List February 1953 (Dar es Salaam, 1953), p. 3.
99.
Judicial Advisers’ Conference 1953, p. 14.
100.
Though it should be noted that there are examples of judicial advisers advocating for the integration of the court systems in British colonies in Africa the years preceding the first Judicial Advisers’ Conference see: A.J. Loveridge, ‘The Future of Native Courts’, Journal of African Administration, 1 (1949), pp. 7–18.
101.
Ibid., p. 5.
102.
Morris, ‘Native Courts’, p. 161. Morris notes, however, that the advisers and their governments did not expect integration to be carried out quickly.
103.
Judicial Advisers’ Conference 1953, p. 7. The only system with a greater degree of separation was Kenya, which had completely parallel court systems. Secretary of State for the Colonies, ‘Judicial Advisers’ Conference 1956’, Journal of African Administration, Special Supplement (1957), p. 4. Hereafter cited: Judicial Advisers’ Conference 1956.
104.
Judicial Advisers’ Conference 1953, p. 15; S.B. Pfeiffer, ‘The Role of the Judiciary in the Constitutional Systems of East Africa’, The Journal of Modern African Studies, 16 (1978), p. 41.
105.
Halwenge had been in the government since 1940 and was made an African administrative assistant in 1950, one year before he took his law exam. Bakari began working for the government in 1948 after attending Makerere College in Uganda. NACP, RG 59, 4035, [file untitled], American Consulate Dar es Salaam to Department of State, 30 June 1951. Their appointments were announced early in the summer of 1951. C. Mathew, ‘General Notice 1073—Appointment of Magistrates’, Tanganyika Gazette, 6 July 1951.
106.
TNA, 41755, R. de Z. Hall [also stamped with signature of T.J. Tawney] to E. Halwenge, 6 July 1951; TNA, 41755, R. de Z. Hall [also stamped with signature of T.J. Tawney] to M. Bakari, 6 July 1951.
107.
Ibid.
108.
TNA, 41755, ‘Extract from the Honourable Mr. Justice Crawshaw—date 5.28.1953’, 4 June 1953.
109.
A.J. Grattan-Bellew ‘General Notice 1771—Appointment of Magistrate’, Tanganyika Gazette, 14 September 1954.
110.
TNA, 41755, ‘Extract from Minutes of the Meeting of the Provincial Commissioners’ Conference—January 1954’, n.d., p. 1.
111.
To become an assistant district officer these men had to meet a number of requirements, many of which were similar to those for district officers. For the requirements see: TNA, 41755, ‘Extract from Minutes of the Meeting of the Provincial Commissioners’ Conference—January 1954’, n.d., p. 1.
112.
Ibid.
113.
NACP, RG 59, 4035, [file untitled], American Consulate Dar es Salaam to Department of State, 30 June 1951.
114.
On the entrance and position of African employees in the lower levels of colonial government after World War II, see: A. Eckert, ‘Cultural Commuters: African Employees in Late Colonial Tanzania’ in B.N. Lawrance, E.L. Osborn, and R.L. Roberts (eds.), Intermediaries, Interpreters, and Clerks: African Employees in the Making of Colonial Africa (Madison, 2006), pp. 250–253.
115.
ARJ 1946; ARJ 1960. Advocates in Tanganyika had a fused role as barrister and solicitor, since the colonies had ‘too few lawyers … to allow such a split’. F. Twaib, The Legal Profession in Tanzania (Bayreuth, 1997), p. 15.
116.
Tanganyika Law Society Ordinance 1954, s 3; Advocates Ordinance 1954, s 7.
117.
TNA (UK), CO 822/124/1, ‘Memorandum by Sir Barclay Nihill, Chief Justice of Kenya’, 8 July 1948, p. 2. There was substantial debate over its placement in Kenya because the Government of Uganda regarded the move as disadvantageous to it and to Tanganyika, which had more appeals to the Court of Appeal than Kenya. TNA (UK), CO 822/124/1, ‘Memorandum by the Government of Uganda—Annexure 2’, 2 September, 1948, p. 1.
118.
TNA (UK), CO 822/124/1, ‘Memorandum by Sir Barclay Nihill, Chief Justice of Kenya’, 8 July 1948, p. 2.
119.
This move had been considered at numerous points, but was not enacted until after World War II.
120.
The extensive debate surrounding the inclusion of colonial judges in the Privy Council is documented in: TNA (UK), Lord Chancellor’s Office (LCO) 2/5788; CO 1026/114. See also: B. Ibhawoh, ‘Asserting judicial sovereignty: The debate over the abolition of Privy Council jurisdiction in British Africa’ in S. Dorsett and J. McLaren (eds.), Legal Histories of the British Empire (Oxford, 2014), pp. 31–35.
121.
Terrell v. Secretary of State for the Colonies (1953) 2 Q.B. [Queen’s Bench] 482.
122.
Inns of Court Conservative and Unionist Society, British Colonial Judges: Their Appointment and Tenure of Office (London, 1956), p. 10.
123.
S.A. de Smith, ‘Tenure of Office by Colonial Judges’, The Modern Law Review, 16 (1953), p. 502.
124.
Ibid.
125.
Ibid., p. 503.
126.
Ibid., p. 502. Roberts-Wray, Legal Adviser to the Colonial Office, asserts that while there was a ‘stir’ among the legal community in England over the case, that it provoked ‘very little reaction among the overseas judges themselves’. K. Roberts-Wray, Commonwealth and Colonial Law (London, 1966), p. 496.
127.
Smith, ‘Tenure of Office’, pp. 505–506.
128.
Roberts-Wray challenges the validity of the pamphlet in: Roberts-Wray, Commonwealth, pp. 497–498.
129.
Inns of Court Conservative and Unionist Society, British Colonial Judges, pp. 17–18.
130.
One British judge asserted that the practice of referring cases of dismissal to the Privy Council had been ‘undeviating’ since the 1929 circular outlining the policy and referred to the practice as an ‘impregnable … safeguard for their [colonial judges’] independence of the Executive as that enjoyed by their English brethren’. TNA (UK), CO 1026/34, N. Birkett, ‘Independence of the English Judges’, n.d., pp. 19–20.
131.
Pfeiffer, ‘The Role’, p. 44.
132.
TNA (UK), CO 877/23/2, unknown to unknown, [first words: ‘In the absence of barrister candidates’], 5 September 1945; K.O. Roberts-Wray, to J.B. Gardener, 21 November 1945.
133.
Battershill briefly served as Governor of Tanganyika, his short tenure resulted from an extended illness, which ultimately led the Secretary of State for the Colonies to encourage him to resign. J.M.M.H. Listowel, The Making of Tanganyika (London, 1965), p. 156; TNA (UK), CO 850/209/10, ‘Report of a Committee appointed by the Secretary of State for the Colonies: Colonial Legal Service’, 16 February 1945, p. 1. Hereafter cited: Battershill Committee.
134.
Ibid., p. 4.
135.
The details of the scheme, including the types of probationerships and relevant financial assistance for new recruits, are outlined in: Great Britain Colonial Office, Appointments in Her Majesty’s Overseas Civil Service, and Other Appointments in Colonial and Overseas Territories (London, 1957), pp. 74–76.
136.
Battershill Committee, p. 5.
137.
In the post-war era, the training courses for administrative officers were revamped, and the inaugural First Devonshire Course opened in 1946. Devonshire courses included more legal training for administrative officers, perhaps an indication that they would continue to administer justice and that they would need more training in order to stand up to increasing scrutiny of their role as magistrates.
138.
Battershill Committee, p. 8; TNA (UK), CO 877/31/3, R. Furse to C. Jefferies, 13 March 1947, p. 1.
139.
Battershill Committee, Appendix V, pp. 19 and 9.
140.
Ibid., p. 8.
141.
Ibid., p. 12.
142.
The role of liaison officer and the procedure for applying to the Colonial Legal Service via the Joint Committee is outlined in: TNA (UK), CO 877/24/8, ‘Method of Dealing with Applications for Appointment to the Colonial Legal Service from Members of the Four Inns’, n.d.
143.
TNA (UK), CO 877/31/1, A. Russell to R. Furse, 4 March 1948, p. 2.
144.
The transition from Her Majesty’s Civil Service was a long process, but the Oversea Service was officially born on 1 October 1954. The Colonial Office added the ‘s’ in Overseas at a later date. Kirk-Greene, On Crown Service, pp. 62 and 68.
145.
Ibid., pp. 65 and 93.
146.
For example: Patrick Ellis, interview with author, Bishops Stortford, 25 March 2009.
147.
The details in this section on Justice Law’s life and career generate from an interview with his widow, except where cited otherwise. Patricia Law, interview with author, Canterbury, 14 May 2009.
148.
Data from: TSL 1942, p. 24; TSL 1950–1959 (under the section entitled ‘Judicial’).
149.
For instance, Justice Biron was first appointed to the magistracy in Tanganyika in 1950 and remained there for the following 11 years of British rule.
150.
Morris, ‘English Law in East Africa’, p. 104.
151.
For Justice Williams’ description of this comfortable lifestyle see: Williams, Black, p. 85.
152.
Charles Law Personal Papers, Canterbury, ‘Garden Sundowner’, excerpt from newspaper in Tanganyika (title and exact date unknown).
153.
Patricia Law, interview with author, Canterbury, 14 May 2009.
154.
For a comparative study of the responses of colonial governments to disorder in colonies in the mid-twentieth century, see: R.F. Holland, Emergencies and Disorder in the European Empires after 1945 (London, 1994).
155.
The phrase ‘cutting edge of colonialism’ is used by Chanock to describe the law, but is extended here to refer to judges handing down the death penalty. Chanock, Law, Custom, and Social Order, p. 4; D. Anderson, Histories of the Hanged: Britain’s Dirty War in Kenya and the End of Empire (London, 2005), pp. 6–7.
156.
A.W.B. Simpson, ‘The Devlin Commission (1959): Colonialism, Emergencies, and the Rule of Law’, Oxford Journal of Legal Studies, 22 (2002), p. 17.
157.
The foundational works on TANU include: Iliffe, A Modern History, pp. 507–520; C. Pratt, The Critical Phase in Tanzania, 1945–1968: Nyerere and the Emergence of a Socialist Strategy (Cambridge, 1976), pp. 23–59; Listowel, The Making, pp. 218–238. On the role of women in TANU, see: S. Geiger, TANU Women: Gender and Culture in the Making of Tanganyikan Nationalism, 1955–1965 (Oxford, 1997). See also: P. Bjerk, Building a Peaceful Nation: Julius Nyerere and the Establishment of Sovereignty in Tanzania, 1960–1964 (Rochester, 2015).
158.
Iliffe, A Modern History, pp. 553–554.
159.
For an account of Twining’s tenure in Tanganyika see: D. Bates, A Gust of Plumes: A Biography of Lord Twining of Godalming and Tanganyika (London, 1972), pp. 202–281.
160.
Iliffe, A Modern History, p. 554. Mwakikagile claims that as many as twelve branches were closed down during 1958–1959. G. Mwakikagile, Life in Tanganyika in the Fifties (Pretoria, 2009), p. 140.
161.
Listowel, The Making, p. 326. The two men were F.B. Weeks, District Commissioner of Musoma, and G.T.L. Scott, District Commissioner of Songea.
162.
As quoted in: Listowel, The Making, p. 326.
163.
Ibid., pp. 166 and 327.
164.
Ibid., p. 327.
165.
The case file of the trial is not accessible in Tanganyika or the UK. One work alleges that, ‘the colonialists might have taken it when they left [Tanganyika] as they did with several other documents’. Court of Appeal of Tanzania, The History of the Administration of Justice in Tanzania (Dar es Salaam, 2004), p. 95. Extensive searching for material on the case resulted in secondary sources, cited in this section, and two firsthand accounts: S. Ngh’waya, Kesi ya Julius Kambarage Nyerere, rais wa Tanganyika African National Union, kwa ‘kashfa’ dhidi ya maDC wa kikoloni wawili 1958 (Dar es Salaam, 1990); K.L. Jhaveri, Marching with Nyerere: Africanisation of Asians (Delhi, 1999). The only primary sources, other than newspapers, that were located were the papers of one of Nyerere’s attorney’s, D.N. Pritt, at the London School of Economics and Political Science Archive (LSE), and an interview with another attorney on the case, Jhaveri, respectively: LSE, Pritt_1.35; Kantilal Jhaveri, interview with author, Dar es Salaam, 16 December 2008.
166.
J.C. Taylor, The Political, p. 167.
167.
Pritt defended numerous other high-profile Africans working for independence in other colonies; Listowel, The Making, p. 327.
168.
This material comes from an article in the November 1958 edition of Drum magazine and is reproduced in: Mwakikagile, Life, pp. 141–142.
169.
Kantilal Jhaveri, interview with author, Dar es Salaam, 16 December 2008.
170.
Court of Appeal of Tanzania, The History, p. 99.
171.
Ibid.
172.
During the trial the first count was withdrawn and the third was modified. For a discussion of the events that led to these alterations, see: Listowel, The Making, pp. 328–331.
173.
Ibid., p. 332.
174.
Ibid.
175.
Jhaveri, Marching with Nyerere, p. 56.
176.
Turnbull was sworn in on 15 July 1958.
177.
Listowel, The Making, pp. 332–333; Iliffe, A Modern History, p. 564.
178.
LSE, Pritt_1.35, D.N. Pritt, draft letter to J.K. Nyerere, n.d.
179.
TNA (UK), CO 822/1325, ‘African Political Affairs’, n.d., pp. 6 and 11.
180.
Anderson, Histories, pp. 6–7.
181.
Ghai and McAuslan, Public Law, p. 173.
182.
ARJ 1958, p. 1.
183.
Bates, A Gust of Plumes, p. 225.
184.
Tanganyika Public Relations Department, Official Opening of New High Court at Dar Es Salaam, on 17th May 1958 (Dar es Salaam, 1958), pp. 3 and 6.
185.
Unknown, ‘The Highest Court in the Land’, Sunday News, High Court Supplement, 18 May 1958, [accessed in NACP, RG 59, 3698, 778.13/11-459]; TNA (UK), LCO 2/5831, Draft for the Lord Chancellor’s Speech at Opening of the High Court in Tanganyika, p. 3.
186.
TNA (UK), LCO 2/5831, Draft for the Lord Chancellor’s Speech, p. 3.
187.
Leopold Kalunga, interview with author, Dar es Salaam, 31 October 2008.
188.
Morris, ‘English Law in East Africa’, p. 104.
189.
TNA (UK), LCO 2/5831, Draft for the Lord Chancellor’s Speech at Opening of the High Court in Tanganyika, p. 4.
190.
The mural is the work of artist Mrs. J.W. McKeon, who lived in Dar es Salaam in the late 1950s. The painted panels were originally ‘linked by a cast plaster frieze picked out in gold’, but the gold decoration was no longer apparent as of 2008. Tanganyika Public Relations Department, Official Opening, p. 6. A British expatriate who lived near the artist in Dar es Salaam, recalled seeing the people who served as models for the mural. She recollected that hearing some noise near her home in Dar es Salaam, she ‘caught sight of it [the cause of the noise], it was led by a female witch-doctor, and she and her retinue were all dressed in colourful costumes, their full regalia, preceded by all manner of instruments being banged. I was much relieved when they passed by my bungalow and headed for one several doors away. I found out they were there to be photographed and drawn by an artist living there who had been commissioned to paint murals on the new Law Courts’. Mary Johnson, correspondence with author, 14 July 2008, p. 1. In the early 2000s the mural was repainted to refresh its colours and some may have been altered in the process, but the scenes in the mural have not been changed in any other way since its creation. Barnabas Samatta, interview with author, Dar es Salaam, 3 December 2008.
191.
Tanganyika Public Relations Department, ‘Official Opening’, p. 6.
192.
G. Rockey, ‘The First of “Little Whitehall”’, Sunday News, High Court Supplement, 18 May 1958, [accessed in NACP, RG 59, 3698, 778.13/11-459].
193.
The Islamic courts are an interesting exception, however, as they are depicted on both sides of the mural.

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Ellen R. Feingold

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Feingold, E.R. (2018). The Resurgence and Expansion of Tanganyika’s Judiciary, 1945–1958. In: Colonial Justice and Decolonization in the High Court of Tanzania, 1920-1971. Cambridge Imperial and Post-Colonial Studies Series. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-69691-1_4

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