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A History of the Adoption of Codes of Criminal Law and Procedure in British Colonial Africa, 1876–1935

  • H. F. Morris

Extract

This article is a survey of the process whereby codes of criminal law and procedure, having their origin in English law, were introduced into the British colonies and protectorates lying between the Sahara and the Zambesi. Such a survey, covering so large an area and period of time, must needs here be brief, but certain salient points emerge clearly from it. A codified body of criminal law and procedure, replacing the English common law and statutes of general application (as modified piecemeal by local Ordinances), had a great appeal to administrators, government law officers, judges and magistrates, and, whatever their differing views as to the respective merits of codes on the Indian, or more purely English, model, they were virtually all agreed that the introduction of such codes was an essential measure of reform. This is hardly surprising in view of the difficulties experienced by judicial officers, of whom the majority were the lay magistrates of the administrative service, in applying the uncodified English law without an adequate supply of text-books or English law reports.

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1 Similarities and differences between the Codes are discussed in James S. Read, “Criminal law in the Africa of today and tomorrow”, [1963] J.A.L. 5–17.

2 Of December 15, 1874; Public Record Office, C.O. 96/112/12406.

3 Later Baron Pauncefote; formerly Attorney-General of Hong Kong and Chief Justice of the Leeward Islands.

4 The background to this legislation, as revealed in the Colonial Office papers, is discussed by R. B. Seidman in “A note on the construction of the Gold Coast reception statute”, [1969] J.A.L. 45–51.

5 E. Fairfield (clerk in the African and Mediterranean Department; later C.B. and C.M.G. and Assistant Under Secretary of State) paraphrasing (in a minute of November 6, 1874) Stephen’s letter to Lord Carnarvon, which was apparently never filed; C.O. 96/112/12406.

6 Fairfield’s minute quoted above.

7 See n.2 above.

page 8 note 1 Dispatch of April 16, 1875.

page 8 note 2 Dispatch of February 16, 1876, C.O. 96/117/11714.

page 8 note 3 See pp. 10–13, below.

page 8 note 4 See pp. 20–22, below.

page 8 note 5 C.O. 96/708, 97/716.

page 8 note 6 See H. F. Morris, “How Nigeria got its Criminal Code”, [1970] J.A.L. at p. 139.

page 8 note 7 I have already dealt at some length in an article in this Journal (cited in n. 6 above) with the manner in which codified criminal law was introduced into Nigeria. I propose in this section merely to summarise this article for the sake of completeness.

page 9 note 1 He states that he used the Queensland Code, the Gold Coast Criminal Code, Stephen’s Digest of Criminal Law, H. L. Stephen’s draft Criminal Code, the Sudan Penal Code, 1889, and the Indian Penal Code.

page 10 note 1 R. A. Maude.

page 10 note 2 C.O. 267/578/44596.

page 10 note 3 Sir Gilbert Purcell.

page 10 note 4 R. J. Wilkinson.

page 10 note 5 Dated October 21, 1918; C.O. 267/579/38712.

page 11 note 1 Minute by Risley of July 11, 1919, C.O. 267/581/33034.

page 11 note 2 Dispatch of July 18, 1919.

page 11 note 3 Formerly Judge of the Supreme Court of the Gambia, see p. 20 below.

page 11 note 4 See pp. 14–16 below.

page 12 note 1 Dispatch of January 7, 1931; C.O. 267/633/9554.

page 12 note 2 Former Governor of Sierra Leone.

page 12 note 3 Formerly Chief Justice of Tanganyika and now working in the office of the Legal Adviser.

page 12 note 4 Cookson to Fiddian, August 5, 1931.

page 12 note 5 Of September 26, 1931.

page 13 note 1 C.O. 554/90/4533.

page 13 note 2 Kenya, Uganda, Tanganyika and Zanzibar.

page 13 note 3 For a history of Indian law in East Africa, see H. F. Morris and James S. Read, Indirect Rule and the Search for Justice, 1972, ch. 4.

page 13 note 4 By a Regulation made by the British Consul.

page 13 note 5 Zanzibar Order in Council, 1884.

page 13 note 6 Which in 1920 became the Colony and Protectorate of Kenya.

page 13 note 7 East Africa Protectorate Order in Council, 1897 and Uganda Order in Council, 1902.

page 13 note 8 Tanganyika Order in Council, 1920.

page 13 note 9 See Morris and Read, op. cit., pp. 117–119.

page 14 note 1 See Morris and Read, op. cit., pp. 120–121.

page 14 note 2 R. v. John Abraham Warwick, Cr. Case 244/1923 in 1st Class Subordinate Court, Mwanza (unreported).

page 14 note 3 C.O. 691/70/28536.

page 14 note 4 Of February 26, 1925; C.O. 533/329/15442.

page 15 note 1 Minute of April 15, 1925.

page 15 note 2 Dispatches of May 5, 1925.

page 15 note 3 Dispatch of June 6, 1925; C.O. 533/329/10376.

page 15 note 4 Of August 1, 1925; C.O. 533/333/40060.

page 15 note 5 A former puisne judge of Kenya, at the time a temporary assistant in the Legal Adviser’s office; “a pleasant but vague old gentleman”, an official has minuted on a Tanganyika file (D.S.A. 7851).

page 16 note 1 Morris and Read, op. cit., pp. 122–3.

page 16 note 2 For examples of typical reactions, official and non-official, in Uganda, see Morris and Read, op. cit., pp. 123–5.

page 16 note 3 E.g., in Kenya alone there was provision for trial by jury for Europeans. In fact, the related, and vexed, question of whether jury trial should be extended in Kenya to Indians nearly held up the enactment of the Criminal Procedure Code in that territory.

On the directions of the Secretary of State, the Law Officers met again in conference in 1933 to review the Codes in the light of experience. As a result, a number of amendments were made.

page 17 note 1 Which through illness he did not attend.

page 17 note 2 Enclosed with Resident’s dispatch of March 19, 1927; C.O. 822/3/17040.

page 17 note 3 Rankine to Bottomley, June 24, 1934; C.O. 618/60/23878.

page 17 note 4 For example, adultery remained a criminal offence in Zanzibar under the new Penal Code, although on the mainland the Colonial Office would not permit such a departure from English law.

page 18 note 1 C. F. Beecher.

page 18 note 2 Enclosure to dispatch of June 30, 1926; C.O. 533/631/5506.

page 18 note 3 Dispatch of February 15, 1927.

page 18 note 4 F. Gordon Smith who had been Assistant Attorney-General of Northern Rhodesia and had just been appointed S.-G. Kenya; in 1927 he was appointed Attorney-General, Northern Rhodesia.

page 18 note 5 Dispatch of March 5, 1927; C.O. 822/3/17040.

page 19 note 1 Dispatch of April 14, 1928; C.O. 822/11/25080.

page 19 note 2 Dispatch of 19 June, 1930, C.O. 822/25/25402.

page 19 note 3 Maxwell’s dispatch of August 4, 1923; C.O. 795/55/36439.

page 20 note 1 Dispatch of February 2, 1933.

page 20 note 2 During the previous 10 years only 185 cases of serious crime (50 from the Protectorate and 135 from the Colony) had been prosecuted to conviction before the Supreme Court.

page 20 note 3 Dispatch of August 8, 1929; C.O. 87/229/12149.

page 20 note 4 Dispatch of February 11, 1931; C.O. 87/232/12300.

page 21 note 1 Assistant Secretary, West African Department.

page 21 note 2 Dispatch of May 19, 1931.

page 21 note 3 Petition dated June 9, 1932; C.O. 87/235/12406/2.

page 22 note 1 Palmer to Fiddian, June 16, 1932.

page 22 note 2 Report of the Committee, enclosed with Governor’s dispatch of April 4, 1933; C.O. 87/238/2362.

page 23 note 1 E.g. in 1945 Nigeria enacted a new Criminal Procedure Ordinance and in 1960 Ghana enacted a new Criminal Code, both bringing the law up to date.

1 Reader in African Law, University of London.

A History of the Adoption of Codes of Criminal Law and Procedure in British Colonial Africa, 1876–1935

  • H. F. Morris

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