Indifferent justice? A history of the judges of Kenya and Tanganyika, 1897-1963
Swanepoel, Paul Arthur Albertus
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This thesis examines the history of the judges of Kenya and Tanganyika between 1897, when the first British court was established in Mombasa, and 1963, when Kenya gained independence. The formation of judicial identities and the judiciary’s role within the colonial state are the main themes. The recruitment process into the Colonial Legal Service is discussed. Legal recruitment was both unique and problematic, mainly because there was a shortage of vacancies for newly-qualified barristers. Many were forced to seek employment elsewhere, but for those fortunate enough to secure positions within the barristers’ profession the financial rewards were substantial. This led to fears that second-rate barristers who were unable to make a living in Britain applied to serve in the colonies as legal officers. As a consequence, the length of applicants’ professional experience became an important factor for recruitment officials. Aspects of judges’ backgrounds are systematically analysed in order to produce a profile of the type of judge who served in the two territories during the colonial period. Judges were among the most mobile of colonial officers and typically served in four or more territories during their colonial careers. These factors shaped their collective identity. At the same time, they partly determined their attitudes towards the various laws they were called on to administer. In setting out the structure of the courts and the laws that were in force, a number of cases are discussed in order to demonstrate judicial attitudes over time. Two chapters focus on Tanganyika during the interwar period, illustrating divides between the administration and the judiciary regarding the administration of justice. Based on memoirs and personal papers, the professional lives of two judges are traced in order to gauge their views on the political events that surrounded them. The final two chapters focus on Kenya in the 1950s. The testimony of advocates is used as a means of inquiring into the characters and attitudes of the judges they appeared before. It provides an impression of the legal profession in late colonial Kenya, as both advocates and judges alike defined their professionalism with reference to the legal profession in Britain. The focus then shifts to judicial decisions made during the Mau Mau rebellion between 1952 and 1959, with particular emphasis being placed on the attitudes and professionalism of the judges of the Court of Appeal for Eastern Africa. The thesis offers a new interpretation of the judiciary’s place within the colonial state; by arguing that as a result of remaining part of the barristers’ profession in Britain, it suggests that colonial judges found it more difficult to adapt to the realities of functioning within the colonial state than members of other branches of the Colonial Service. This discord contributed to the emergence of a distinct judicial identity in the colonies.