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 GWAO BIN KILIMO:
THE ADMINISTRATORS' REACTION
ANDREW LYALL*

The case of Gwao bin Kilimo v. Kisunda bin Ifuti' decided by the colonial
courts of the then Tanganyika has always held a certain fascination for those
interested in the process of law under colonial rule. This is for a variety of
reasons. The case seems to put into sharp focus the conflict between the
imposed common law system and the indigenous customary law. This in
turn stimulates questions as to the social values that lay, and probably still
lie, behind the two systems and the extent to which those values reflect
actual differences between the societies in which they developed. Since the
conflict arose in a colonial context, the case also raises the question of the
r6le of law in such a society and therefore, to some extent, the r6le of law in
relation to ideology and political economy in this and in other contexts also.
What is less well known is that the case was the subject of comment by
colonial administrative officers at the time,2 comments which point up many
of the issues involved and provide some insight into the different perceptions
of African society on the part of administrative officers on the one hand and
the judiciary on the other.
The case itself concerned a government tax clerk named Mange who, in
the course of his duty, collected ten shillings in poll tax from the respondent.
He issued a forged receipt for the amount and converted the money to his
own use. Mange was tried for the offence in a criminal court and convicted.
The respondent then brought a civil action against Mange for the return of
the ten shillings and succeeded in obtaining a decree. Whether he should
have done or not was "highly debatable", in the view of the judge, since he
thought it could plausibly be argued that the money was "already the
property of the government", but the point did not concern the court in the
present appeal. What did concern the court was that, in execution of his
decree, the respondent attached, by court process, two head of cattle, which
were, in the judge's words, "admittedly the property not of the judgment-
debtor, Mange, but of his father." The father, Gwao, unsuccessfully objected
to the attachment before the Second Class Subordinate Court at Singida
and petitioned the High Court to revise the decision and to order his cattle
to be returned to him.
There were essentially two issues before the High Court. Was there a rule
of Nyaturu customary law to the effect that a father's property could be
seized in compensation for a wrong committed by a son? If so, was such a
rule "repugnant to justice and morality" or inconsistent with any law in
force in Tanganyika? This latter issue arose because of the provision in
Article 24 of the Tanganyika Order in Council, 1920 which laid down that:
"24. In all cases, civil and criminal, to which natives are parties, every Court
(a) shall be guided by native law so far as it is applicable and is not repug-
nant to justice and morality or inconsistent with any Order in Council or

* Lecturer in Law, Faculty of Law, University College, Dublin.

'Tanganyika L.R. Supp. No. 8 of 1938, p. 33.
2 These are contained in the file T.N.A. (N.S.) 262774 "Liability of Relatives of a Native
Debtor for Debts Contracted" in the Tanzania National Archives. References in footnotes are
to this file unless otherwise stated.
Vol. 32, No. I Gwao bin Kilimo: the Administrators'Reaction 65

Ordinance or any regulation or rule made under any Order in Council or

Ordinance; ... "
On the first issue WILSON, J. found that the rule had not been proved, as
the evidence was conflicting. He found that the evidence given in the lower
court was contradictory and unsatisfactory. The witnesses had agreed that,
in the past, a father would usually make compensation for a cattle theft
committed by his son, and if he did not, public opinion would condone a
raid on his kraal by the victim of the theft. They did not agree, however,
that the community would itself force the father to make compensation.
Neither the judge nor, for the most part, the administrators, considered
whether, even if the community had enforced such a form of liability, what
relevance that would now have in the context of system of colonial courts
staffed by appointed officials or even European district officers, but then it
was a part of the system of colonial rule to seek to attach the legitimacy of
traditional forms to the colonial forms of rule that had replaced them, and
hence to maintain the myth that the change in procedure did not imply, and
express, a change of substance.
On the second point he found that the rule, had it been proved would not
have been in conflict with the laws in force in Tanganyika under Article 24.3
It was in conflict with Order 21 rule 60 of the Indian Code of Civil Procedure
which was in force in Tanganyika, but that was not a rule made under an
Order in Council or Ordinance. It was on the issue of repugnancy that the
judge saw his opportunity to deliver a resounding condemnation of African
concepts ofjustice. "Is it just' he asked, rhetorically, "according to our ideas
to take away a man's property in order to compensate a party who has
suffered injury at the hands of the man's son, the son being of full age and
fully responsible in law for his own actions?" He was "most strongly" of the
opinion that it was not:
Each case must, of course, be decided on its own facts, but in the present case
the son is an employee of the Government, and therefore no doubt to some
extent removed from the sphere of tribal influence and sanctions. His
defalcations have in no way benefited his father or his family. It is against
our general ideas ofjustice that a man should suffer or be punished directly
either in person or in property for some wrong which he has not done himself,
though of course in the nature of things it is often impossible to avoid the
infliction of indirect suffering or loss in such cases. The Mosaic law no doubt
contemplated that the sins of the fathers should be visited on the children
unto the third and fourth generation, but it is certainly contrary to the
principles of British justice that the sins of the sons should be visited on the
fathers, when the sons are themselves fully responsible persons in law.
He therefore held that the cattle had been wrongfully seized.

CUSTOMARY LAW: RELATIVES RESPONSIBILITY FOR DELINQUENCY OF

INDIVIDUALS

The case itself did not resolve the question as to whether there was such a
"rule" of Nyaturu customary law requiring relatives to make good losses

Indian Code of Civil Procedure. Ord. 21 rule 60. Code of Civil Procedure, Act V of 1908,
0. 21 r. 60:
Where upon the said investigation the Court is satisfied that the reason stated in the claim
or objection such property was not, when attached, in the possession of the judgment-debtor
or of some person in trust for him, or in the occupancy of a tenant or other person paying
rent to him, or that, being in the possession of the judgment-debtor at such time, it was so
 Gwao bin Kilimo: the Administrators' Reaction [1988] J.A.L.

caused by an individual member of the group, although, as we shall see, the

administrators' comments indicate that something in the nature of a moral
responsibility existed on the part of kinship groups most significantly among
pastoral societies and particularly in relation to cattle. What the case is
remarkable for is the assumption of the judge that it was the "father's
property" that was at stake. The judge sees the issue in terms of individual
property. But were the cattle really the property of the father at all? While
the administrators' comments do not help to shed any light on the Nyaturu
custom, they make it clear that the administrators were aware, unlike the
judge, of the concept of family property and of the part it had to play in the
colonial scheme of things. Northcote, the Acting Provincial Commissioner
for Southern Highlands Province commented:
Certainly in Rungwe District nearly all the cattle are family owned. In most
native cattle owning tribes, cattle and more valuable property, if they have
any of the latter, are to a large degree family property or individual property
with a strong lien in favour of the family. Thus, in addition to the individual
right of user of cattle and other major property, the "owner" still-also has a
responsibility to his social group and may be called upon by the head of such
group to apply a portion of his property to4 the common need of the group in
liquidating the obligation of an individual.
Another provincial commissioner commented:
The PC Southern Highlands' contention that the "clan" is responsible for the
shortcoming of even crimes of each and every member of the clan is not
questioned by many tribesmen. The thought of a man paying a "son's" fine
(not necessarily a physical son) is no more incongruous to the tribesmen than
the thought of a parent being fined because of his offspring's non-attendance
at a school is to us: in fact probably the same idea is behind both thoughts:-
the parent ought to control the child, the clan (who owns the property) ought
to control all its members; if parent, or clan, fail, they must take the
consequences.-
The colonial administrators' understanding of the customary practice is, of
course, mediated by their own concerns for the maintenance of colonial rule
and the need to justify it. The provincial commissioner here sees the value
of the custom as a useful means of social control, and stresses the resemblance
between it and "European" ideas in relation to the control by parents over
children. The judge, on the other hand, not being involved in the down-to-
earth concerns of colonial administration, does not seem to appreciate the
value that might be seen in such a principle in the context of a policy ofindirect
rule. The administrators saw that the colonial peoples' own indigenous
institutions could be incorporated into the means of maintaining colonial
rule, thus relieving the colonial rulers to some extent of doing so by more
direct means, with the dangers of confrontation that this might entail, and
even with the added benefit that the colonial rulers could plausibly claim to
be maintaining indigenous culture.
Other administrators also saw that the cattle held by the head of the
family was not necessarily his own individual property:

in his possession, not on his own account or as his own property, but on account of or in
trust for some other person, or partly on his own account and partly on account of some
other person, the Court shall make an order releasing the property, wholly or to such extent
as it thinks fit, from attachment.
' Acting Provincial Commissioner Southern Highlands Province to Chief Secretary, 27
November 1938.
' Provincial Commissioner Eastern Province D.S.M. to Chief Secretary, 17 November, 1938.
Vol. 32, No. 1 Gwao bin Kilimo: the Administrators'Reaction 67
The custom by which the family wealth is held by the head of the family in
trust for the inheritance group is found particularly among the cattle owning
tribes. Cattle are paid over by the head of the group on behalf of a member
who wishes to marry, obtain cash for any specific purpose or perform any
ceremony for which stock is required. 6
The administrators also show an awareness, as the previous quotation
suggests, that the extent to which this form of family property and
liability occurred varied from one social group to another. One provincial
commissioner wrote:
I am in substantial agreement with the exposition of native law given in the
letter so far as it relates to cattle-owning and to the other less-sophisticated
tribes of the Territory. The underlying principle of the family or clan as a
unit embracing the necessity of mutual aid from the common property still
survives more generally. The extent to which the attachment offamily property
to liquidate the delinquency of an individual is resorted to varies according
to the stage7 of development which has been reached in the particular
community.
The provincial commissioner of Northern Province, which included both
Masailand and Moshi district, reported that there was no known case in
which a court had ordered distraint on family property to meet the obligation
of an individual. In Masailand it was customary for the family to come to
the aid of an individual member and they regularly paid fines imposed on
an individual member of the family, but they had never been ordered to do
so by a court. Other administrators took a similar view. The provincial
commissioner of Western province reported that in Musoma District cattle
theft was rife and that Native Courts were known to have ordered distraint
on family property which he considered "perhaps morally justifiable" but
that the community as a whole did not enforce such compensation, nor was
there any tribal custom to that effect.' Among the Chagga on the other hand,
it was a different matter:
Conversely, in Moshi District, individual ownership has become an established
principle of tribal life. Amongst the Chagga, any attempt by a court (Native
or other) to distrain upon the property of members of a family, in satisfaction
of a debt due by one member of a9 family, would be regarded as unjust and
would, in fact, be resisted strongly.
The Chagga practised stable agriculture based on the banana as a staple
and coffee as a cash crop and had done so since at least the beginning of
colonial rule. This stable form of agriculture made possible the use of smaller
production units and consequently produced a development of the notion of
individual rather than collective property. Furthermore, since the basis of
production was land rather than cattle, their society was based on a resource
which was inherently less capable of being turned into cash to satisfy debts
or fines.
REPUGNANT TO WHO'S MORALITY?

Far from agreeing with the judge's characterisation of the customary

liability offamilies for individual members as "repugnant", the administrators
were highly critical of this aspect of the judgment. Northcote commented:
6 Deputy P.C. Lake Province to Chief Secretary Mwanza, 18 November, 1938.
P.C. of? to Chief Secretary, 3 January, 1939. The place is illegible, but from the reference
in the text it seems it may be a reply from Northcote, P.C. of Southern Highlands Province.
8 P.C. Western Province (Williams) to Chief Secretary Tabora, 30 December, 1938.
9 Provincial Commissioner Northern Province to Chief Secretary, 3 February, 1939.
 Gwao bin Kilimo: the Administrators' Reaction [1988] J.A.L.
The question of execution on the person for a wrong committed by a relative
does not, I think, arise, since, so far as I am aware, it forms no part of native
custom. In considering execution on "property", however, it may be contended
that the guide should be the native and not the British conception of the
meaning of the word.
If the concept of family property were to be properly understood he contended
that it could not be held repugnant either to justice or morality. The
Provincial Commissioner of Dar es Salaam Province" took a similar view,
in that it should be the African concept that should apply, not the European
one, and he commented that "It is therefore not repugnant to justice as
conceived by a great many Africans to distrain cattle from the clan: it would
be repugnant to many if it were not done." He recognised that this concept
was changing with the introduction of wage labour and the increased
acquisition of individual property which this produced, but was not in favour
of the courts hastening the process. "I should be prepared to let native law
in this matter wear itself out in the native courts as it will in time", he
remarked. Other provincial commissioners took a similar view: the custom
was a feature of cattle-owning societies: it should not be extended beyond
its traditional setting and in the long run should be allowed to decline, but
there were dangers in prematurely hastening its demise and, in context, it
remained a useful form of social control. As one of them wrote:
So in the particular case, viz. the distraint upon a father's cattle in compensation
for a theft committed by a son, as long as this continues to be accepted custom
(and this, in my view, is entirely dependent on the continuation of the family
ownership of cattle) it will be acknowledged by the Native Courts and can in
no way be regarded as repugnant to justice and morality, as suggested by the
learned judge when he referred to sl3a of the Native Courts Ordinance.'
Just as the administrators were more sensitive to the meaning of the custom
in its context, so too were they more aware than the judge that it was not so
starkly in contrast to "British" moral values, at least as practised in dependent
territories, as the judge seemed to think:
The learned judge appears to have based his decision on the view which he
holds that it is repugnant to justice and morality that a man should suffer or
be punished directly either in person or in property for some wrong which he
has not done himself. This is a question of ethics rather than of law and I
venture respectfully but strongly to disagree with the learned judge on this
point. The fact that there exists on the statute book a Collective Punishment
Ordinance (Cap. 22) supports my view. 2
It is interesting that another provincial commissioner made the same point:
The judge regards it as contrary to the principles of British justice to visit the
sins of the sons on their fathers. The framers of our Collective Punishment
Ordinance and of 3the Kenya Stock and Produce Theft Ordinances took a
very different view.1
These quotations today strike one as remarkably frank and seemingly to
concede a criticism of one of the more notorious aspects of colonial, as
opposed to domestic British law. But this would be too simple a view. It
should not be concluded that the administrators actually disaproved of the
concept of collective punishment. On the contrary, there is nothing to

P.C. Dar es Salaam to Chief Secretary, 17 November, 1938.

"P.C. of ? to Chief Secretary, 3 January, 1939.
'2 P.C. Dodoma (Central Province), 12 December, 1938 (C. Partridge).
'3 P.C. South Province. Lindi to Chief Secretary, 14 December, 1938.
Vol. 32, No. I Gwao bin Kilimo: the Administrators' Reaction 69

indicate that they considered it in principle as contrary to human rights or

anything of that kind. The Collective Punishment Ordinance itself went far
beyond the supposed liability, or rather, perceived moral responsibility of
the African family for junior members. The Ordinance sanctioned the
imposition of criminal liability and not merely on family members, but on
inhabitants of whole villages or even "tribes" in cases of stolen property
being found within an area where inhabitants had "failed or neglected to
restore the property or to trace it beyond the limits" of the area. In the case
of a homicide or unlawful wounding being committed within an area, the
inhabitants could be fined by the Governor if they "failed to take all
reasonable means to prevent the escape" of the offender, and the onus was
on them to prove that they had "used all reasonable means to bring the
offender to justice".14 It was not the collective element in the liability which
the colonial administrators objected to but the extension of family liability
beyond its traditional setting. This was partly because they seemed to make
a fairly clear distinction between traditional social relations and the new
ones inaugurated by the introduction of wage labour.

AFRICAN WAGE LABOUR AND ITS EFFECTS ON LEGAL LIABILITY

The colonial administrators saw that the introduction of African wage

labour in an economy traditionally based on subsistence labour would have
its effects on forms of property and criminal liability. As Northcote put it:
It would not be incorrect to say that, prior to the advent of the European, the
property of the family was vested in the senior member as trustee and that he
would not dispose of anything of value without a family consultation. As a
corollary to this, however, the family were responsible for all the delinquencies
of the group, either caused by the group generally or individual members
thereof. With tranquillity under a European regime [!] and the opportunity
[!] of earning wages as an individual, together with missionary influence, the
above conception was, or has been, undoubtedly modified. No longer does
the son come home and give all his earnings to his father or senior relative.
He gives something as a present and assists to a large degree in family financial
affairs, being still under the influence or [sic] original tribal ideas. It has been
specifically stated to me in Tabora that cattle purchased with a man's earnings
on an estate are in a different category from family cattle and belongings until
they have been absorbed
5 into the family estate by being used for marriage
payments etc. etc.'
Wage labour would lead, then, to an increase in individual property and
particularly among the junior male members of families who had previously
lacked legal autonomy in this area. It would also be "unfair" in these
new circumstances to impose criminal liability collectively on the family.
Northcote comments later in his report:
It would of course be unfair for the family to be held responsible or generally
liable for the delinquency of a member of the group which came to pass under
circumstances totally unconnected wtih tribal affairs e.g. a native being fined
for an offence under the Masters and Servants Ordinance for not working
properly. A fault of this nature is extraneous to the tribal group and its affairs
and nothing to do with tribal life. The head of the family, as a trustee for the
group, does not receive a man's wages from the employer and it may be said

14 Collective Punishment Ordinance, Cap. 22, Laws of Tanganyika.

' Northcote to Chief Secretary, 27 September, 1938.
70 Gwao bin Kilimo: the Administrators' Reaction [1988] J.A.L.
that today no legal claim by the head of the family would lie for them, hence,
as the group takes no legal benefit, it could disclaim responsibility.
The assumptions that underlie this attitude are worth examining because they
illustrate the subtle, even subconscious influences at work in undermining
traditional values. Northcote sees a distinction between traditional society
and the new conditions brought in by colonial rule, but the distinction itself
is seen in terms of the new values. Northcote's concept of "fairness" is that
he who benefits materially from economic activity should in justice bear the
costs and in legal terms, that benefit justifies the imposition of liability. The
person may accept or reject the benefits. They are based on an act of will,
and this voluntary act morally justifies responsibility in law if the benefits
are tainted by criminal activity. It is highly unlikely that any such concept
lay behind the traditional assumption of responsibility for the acts of
individual members. It was not based on a calculation of profit and loss.
The family accepted responsibility for their members simply because they
were members of a collective entity. The family was itself a part of a complex
of social relations involving co-operation with other families and social units.
It was not a quidpro quo for economic benefit, but a recognition of status.
Another strain in the thought of the administrators which intersects with
the economic changes that they saw emerges from their attitude to the "cattle
theft" prevalent in parts of the country at the time. They saw it as a threat
to "tranquillity" i.e. the r6le of the state as a colonial police power and the
extension of this state throughout the country. They took the view that, since
cattle theft was collective in the form of its commission and in the distribution
of the spoils, collective forms of criminal liability were appropriate in
combating it. On the other hand they were well aware that the emergence
of Mrican labour power as a saleable commodity, which they actively
pursued as a policy, would produce new forms of individual property that
would be subversive of traditional forms of property. Those new forms of
individual property would also, of course, prove subversive of traditional
forms of authority. The administrators were suspicious and fearful of this
aspect of the process which, paradoxically, they welcomed in its economic
manifestation. They wished to maintain traditional collective forms of
authority as far as possible and feared that the legal and economic
independence of the young generation of African workers might one day
assume the form of political activism. This curious colonial paradox between
economic policy and its probable political consequences is one that deserves
further study. It was not that the administrators did not foresee the political
consequences of economic policy. On the contrary, they did. But this did
not lead them to reverse the policy. They would hardly have been able to
prevent the growth of wage employment even if they had wished to do so,
but they seemed to have a foreboding that wage labour would stimulate a
growth of political opposition to colonial rule. The decline of traditional
authority would leave a vacuum which could only be filled by direct
intervention of the colonial state to suppress internal opposition. The
articulation between it and traditional forms of authority would be broken,
leaving it exposed and more clearly seen as an oppressive force. One
administrator voiced some of these fears when he wrote:
Any attempt to interfere with the vesting of property in the head of the family
in trust for the inheritance group is to be deplored, for it would seriously
affect native society. One of the last controls over the emancipated African
youth of today is the knowledge that, if he offends against society, his family
Vol. 32, No. I Gwao bin Kilimo: the Administrators' Reaction 71
may decide to withhold the cattle which are according to tribal usage, his
share of the family wealth.' 6
Yet again one finds that the aspect of the traditional form of property which
attracts the attention of the colonial administrators is its function as a form
of social control vested in the older members of the community. If this form
of control was to be preserved so long as the traditional forms of society
remained, then it was equally important not to undermine it by extending it
into the area where individual economic autonomy was to be the rule. To
hold the family, or family property, responsible for wrongs committed by
the individual in the sphere of wage employment would tend to have this
effect. The judge in Gwao may have grasped the latter point, but he displayed
an ignorance of the finer points of colonial policy in relation to traditional
society and its forms of liability. These points were not lost on the
administrators who showed considerably more sophistication. In the long
run, however, the threat to colonial rule was to come not simply from the
individualised and "emancipated African youth", but from new forms of
collective organisation through African trade unions and political parties
which emerged prior to independence.

16Deputy P.C. Lake Province to Chief Secretary Mwanza, 18 November, 1938.