A History of Wealth and Poverty: Why a Few Nations are Rich and Many Poor, by John P. Powelson.


Africa: Warfare, Slavery, Colonialism, and Law


War and Violence

But fundamentally it was endemic war, waged for millennia in all parts of the [African] continent, that set the norm of the territorial fluid state. . . . [W]ar itself and preparation for war summed up the purpose of the masculine life. [1]

This same quotation would have applied to northwestern Europe or Japan in the Middle Ages, for war was a legitimate means of resolving conflicts in both those areas. The change in Europe was gradual: conflict resolution was transferred over centuries from the military to the courts, bargaining tables, and embassies. It is hard to tell how the legitimacy shifted in Japan, for peace was suddenly imposed by Tokugawa Ieyasu after the Battle of Sekigahara in 1600.

"Legitimacy" means that war or other violence is an ordinary way to resolve conflicts, as acceptable as collective bargaining or the courts. Legitimacy is displayed in two ways: by repetition — war continues for decades or even centuries — and by ease of initiation — whether war is a first resort or a last one. A modern example is the street gangs in American cities that appear to accept violence as a legitimate first-resort means of winning conflicts.

In Africa, inter-societal war was a first-resort means of resolving conflicts outside the family or clan, until peace was imposed by colonial powers in the latter part of the nineteenth century. Violent force was the weapon of choice to gain labor (by enslavement) and capital (cattle). While peaceful transactions may have taken hold in some places after independence in the 1960s, in others the tradition of legitimate violence has returned. [2]

The Universality of War and Violence

That war was almost continuous in North Africa from the seventh to fifteenth centuries is no surprise, for it was then endemic to the entire world. Examples of long-term hostilities include the Arab sweep across the Maghrib and on into Spain; the conflict of the Kharijite Movement in the eighth century; [3] the violent struggles for power among North African states and tribes in the tenth and succeeding centuries; [4] wars between the Fatimids and the Umayyads in Egypt in the eleventh century; [5] the military conquests of the Almohad and Almoravid Empires in the eleventh and twelfth centuries; [6] and the beginnings of the jihads that in ensuing centuries swept down the west coast of Africa.

The historical record of war becomes more extensive in the sixteenth century. By demolishing the Songhai Empire in 1591, the Moroccans added a hostile force that intensified the turmoil in Jenne, Timbuktu, and other trading centers. [7] Songhai already had been weakened by civil wars earlier in the century, arising out of nepotism and succession disputes. [8] Kano and Katsina, city states in what is now Nigeria, had their first recorded war in the second half of the fifteenth century; wars between them continued throughout the sixteenth. [9] In Bornu (now eastern Nigeria and Chad) Idris Aloma was expanding southward into Mandara, Bagirmi, and Kwararafa, destabilizing regimes by shifting support for rival candidates. [10] In the Niger delta, communities initiated drum praise names to show their approval of piracy, head-hunting, and slave raids. [11] Beset by succession disputes, the Mwene Matapa dynasty in south-central Africa both raided and was raided by its neighbors. [12] "The seventeenth century was, par excellence, a century of warfare for western Hausaland. It had also been a century of rapid power build-up." [13] Tubu and Tuareg nomads raided trans-Saharan trade, and Tuareg and Bornu fought repeatedly. [14] Nasr al-Din, leader of the Zawaya, launched extensive jihads in 1673, attacking the Hasan to the south. [15] He dislodged and incited the Torodbe and the Fulani, who both continued the jihads southward and eastward. Peaceful when they could trade manure with local people for supplies, the Fulani waged war under other circumstances. By the end of the eighteenth century they had overthrown most Hausa states and were threatening Mandara, Bagirmi, and Bornu. [16] In Hausaland, "frequent wars [led] either to a stalemate or very transient dominance of one state over another." [17] "In Oyo's sphere, military encounters persisted throughout the seventeenth and eighteenth centuries." [18]

Farther south, the revolt of Sohio against Kongo and the Angola (Portuguese)-Kongo wars, which lasted fifty years, led to the end of the Kongo monarchy in 1655. [19] At the southern end of the continent, Nguni chiefly families split into rival lineages, which sometimes negotiated their differences peacefully but more often went to war. [20]

Toward the east, Arab states were frequently in conflict with Portuguese and Turks in the seventeenth century. No sooner had the Portuguese been forced out of Mombasa in 1698 than a series of internecine wars erupted among Arab rivals. [21] In the interior, Buganda conquered her neighbors over a two-century period but then was afflicted by wars of succession that coincided with rebellions of tributary states. [22] Farther east, Kikuyu, Kalenjin, and Masai engaged in frequent warfare and traded cattle raids. "[T]he dealings between the Masai and their neighbours varied from chronic warfare to peaceful market contacts and inter-marriage." [23] In Ethiopia the Galla attacked the Gondar Empire from all directions, and other wars broke out in the eighteenth century. [24] In Madagascar "war took place between clans, and, more frequently, between kingdoms; there were frequent periods of insecurity." [25]

The nineteenth century opened upon continuous warfare. "Civil wars, anarchy, perpetual robbery and violence lasted for over a century" [26] in Fouta Djallon (modern Guinea and Sierra Leone). "In Morocco there were many succession struggles, and "revolt can almost be described as endemic." [27] "[T]he jihad movements engulfed the whole breadth of the Sudan." [28] Mohammed Ali of Egypt set about to conquer Palestine and Syria, with wars from 1811 until the European powers stopped him in 1841. In Ethiopia, the "era of the princes" (Zamana Mesafent) led to decades of disorder. "Kings were enthroned and dethroned at the whims of governors, who fought among themselves for the position of ras of the kingdom. . . ." [29] Inter-personal offenses, strictly punished, could result in warfare among clans. In Malawi, "an offence resulted in `nothing more or less than war or death of the criminal,' fighting could take place between relatives, and slaves exchanged as compensation." [30] In Lunda, "the empire had constant difficulty in defending its northern border, which never lay far from the mwata yamvo's capital." [31] Among the Zulu, "service in the age-regiments and participation in actual warfare served as the rite de passage, marking the transition from adolescence to adulthood." [32] In approximately 1820, King Shaka of the Zulus launched a devastating series of wars, known as the mfecane, whose domino effects displaced tribes as far north as Lake Victoria.

War as Inhibitor of Institutions of Trust

Quite apart from the destruction of human and physical capital, war inhibits economic development because it displaces peaceful ways to resolve conflicts and to form institutions of trust. The references cited in footnote 2 tell of immense human suffering as societies were weakened or destroyed. But that is not all. The society itself is the framework within which institutions of trust are created. Councils of chiefs did resolve some internal conflicts and might have evolved into modern parliaments, but if these councils are destroyed along with the society they cannot become mediators for more intricate questions of business contracts.

References to the destruction of whole societies in Africa are legion. Formed in the thirteenth century, the Kanuri Empire, "ruled by kings of international fame," was brought down by wars lasting throughout the fourteenth century. A "rapid succession of rulers" and "disregard of proper succession procedures" [33] do not create a stable background for bargaining over economic privileges. "The period [1600-1790] witnessed the decline or temporary eclipse of most of the major states first encountered by the Portuguese: Benin, Kongo, Ndongo, Matapa, and Ethiopia. But against these . . . there were many other examples of growth." [34]

When such instability prevails, gaining wealth by loot may be less costly than by economic enterprise, when the risks of each are taken into account. The conquest of the western Sudan by the sultan of Morocco in 1591 was "envisaged from the start as a source of taxes and loot — taxation of the salt mines and control of the gold mines." [35] Alternative ways to prosperity — agriculture and crafts at home and Mediterranean trade — were less appealing. When his venture failed over the ensuing decades, the sultan's state collapsed. Likewise, in the sixteenth century, "the mai's [Idris Aloma of Bornu] revenue was obtained solely from the booty of his campaigns, the most important commodity being captives whom he could barter for horses with the North African merchants." [36]

When the institutions of economic development are not integral to the culture, their appearance in fledgling form is weak. In the Upper Zaire basin in the eighteenth century, family enterprises would grow, but often the younger generation, wanting to "break free from the master's control were opposed by military might." [37] A developing society must be sufficiently fluid so that enterprises adapt and sometimes split, but it must also be sufficiently cohesive that they do not do so as a regular working process. The example from Zaire reflects a failure of cohesiveness: stability imposed by force, hardly a situation favoring the nurture of institutions of trust.

In Malawi and Zambia during the late nineteenth century, Chanock emphasizes "not state building and proto-modern institutions with law and judging as an essential feature, but localism, parochialism, lack of government, arbitrary alteration of status, violence between and within communities, as well as bargaining and local consensual arbitration. [38]

From all these examples, one might suppose that for centuries Africa was so swept up in warfare and violence that it would be impossible for normal polities and economies to function. Yet we have seen that Africans showed high entrepreneurial skills and engaged in extensive, long-distance trade. Two possible explanations occur to me:

First, despite endemic warfare, there were long periods of peace in particular places. For example, "the century before 1875 was marked by conspicuous stability in the heart of Central Africa, and by long uninterrupted reigns at the courts of the Lunda kings. . . ." [39]

Second, and probably more meaningful, because the legitimacy of warfare puts it on a par with collective bargaining and modern courts in more industrialized areas, like these it was written into the calculations of risk and enterprise. By occupying the place of negotiation, compromise, and contract, warfare in Africa made those methods seem less necessary. However, the transaction cost of warfare must have been ultimately greater than that of negotiation.

Warfare can resolve only simple conflicts, such as over territory, succession, trade routes, and rights to industry. By conquering, one cannot force others to become partners in great trading companies, to join in contracts, to allocate capital efficiently, to give and receive promissory notes, to issue trustworthy money or bank accounts, to acquire financing from distant places, or to cooperate in inventions and research. By continuing to rely on warfare to resolve conflicts, Africans approached a dead end. Economic development lay on a different path, which they had not taken. This is an example of North's path dependency theory. [40]

Slavery and the Labor System

"Slavery" in Africa is simply one part of a continuum of relations which at one end are part of the realm of kinship and at the other involve using persons as chattels. "Slavery" is a combination of elements, which if differently combined — an ingredient added here or subtracted there — might become adoption, marriage, parentage, obligations to kinsmen, clientship and so forth. [41]

The complexity of slavery is matched by the complexity of the free market in labor. There are degrees of slavery, which shade into family labor and free labor.

Despite the vagueness of boundaries between them, some labor systems have nevertheless been mainly free and others mainly slave. Why? With professional ethnocentrism, economists have tended to reason that the choice was made by weighing benefits and costs based on relative scarcity of factors of production. Amplifying a model applied to Russia by Kliuchevsky, Domar hypothesized that a high land/labor ratio would bias a society toward slavery, provided a government would enforce the system. If land were free, then free men would find their own farms. Only by government-enforced slavery would large owners acquire labor. [42]

An abundance of land is part of the reason for slavery. By confining himself to Europe and America with their relatively stable governments, however, Domar did not ask why slavery occurred in stateless societies in Africa. He also presumed there were owners of specific pieces of land, without considering migratory societies in which land is held in common and holdings "migrate" with the society. Nor did he inquire why landowners unable to hire labor because of the abundance of land might not use the market to obtain what they needed from free farmers, instead of slavery to make those same farmers produce it.

The answer does not lie solely in relative availabilities of land and labor. Rather, in fifteenth-century Russia, as in tenth-century Europe and Japan and eighteenth-century Africa, strong people forced the weak to provide their sustenance, in exchange for defending the weak against other strong people who would have done the same to them. Since the Russian landowners had nothing to offer free farmers except this "protection," the alternative to slavery was surely not a free market at all. Instead, after "free" peasants had grown their food, the czar's henchmen might have taken what they wanted rather than buy it. The results of free farming and slavery would have been the same.

Loss of population in the American slave trade, cruel and destructive as it was, probably did not inhibit Africa's economic development over the long term. The resurgence of European population after the Black Plague (1348), which wiped out a quarter of the people within five years, and the Thirty Years' War (1618-48), which killed up to fifty per cent of the population in some parts of Germany, demonstrate the ability of peoples to overcome such tragic losses and to revive economic activity. Both Clark (1968:64) and Hopkins (1973:121-2) estimate that the slave trade merely offset the natural increase in population. Curtin (1969) shows that it deprived Africa of much less labor than had previously been thought.

The dislocation rather than loss of populations, the warfare to capture slaves, and interference with other kinds of trade were the major sources of economic harm. Slavery inhibits efficient allocation of resources by melding labor to land and capital. Laborers move only to occupations more attractive to their owners, not to themselves. Therefore this movement responds to the productivity of land and capital, not of labor. All these effects were already in process before the Europeans initiated the American slave trade.

Slavery did not immediately end in Africa when colonial authorities gave the command. Only when a cash market for many products, including wage labor, appeared attractive to large numbers of people did it become increasingly difficult for slave owners to keep their labor. Since these owners did not see an immediate benefit to themselves, they resisted cash markets and gave in only when they had no other choice.

Whether slavery is economically efficient — a question much debated among Western economists — is irrelevant here. The very existence of slavery, with its relationship to warfare, violence, and confrontation, has inhibited the growth of complex institutions of economic development. In this broader sense it is inefficient, regardless of benefit-cost calculations for plantations in the ante-bellum U.S. South. [43]

In sum, slavery is historically the normal system for acquiring labor in all early societies, including European, Japanese, and African. The question is not so much why the Africans retained it as it is why the Europeans and Japanese gave it up. Because of its inefficiency, the retention of slavery by Africans is another element explaining their retarded economic growth. Further references on slavery as a labor system appear in Appendix 8.1. References on the transition from slavery to cash labor are in Appendix 8.2.


Conventionally, the debate over colonialism centers on three issues. First, did the colonial powers seize more assets, such as land, than they supplied, such as infrastructure, credits, and other benefits? Second, did they pay fair prices for primary products purchased? Or, by seizure and unfair prices, did they decapitalize Africa? Third, did they discriminate against Africans, refusing them access to markets and resources available to Europeans?

The historical facts are well known, and the debate is increasingly sterile. The colonial powers did indeed seize land. Whether they supplied equivalent assets will be questioned forever. They paid for their primary products, usually with market prices, but whether these were "fair" will never be resolved. They did not decapitalize Africa, but they did discriminate, refusing Africans access to resources available to Europeans.

Whatever the impact of these events, they do not explain continued poverty in Africa today. Except in South Africa, the land was restored decades ago, and if colonial-style discrimination has not vanished by now it is because present-day forces keep it alive.

But colonialism had another impact, more serious, more negative, and more longlasting. It displaced African groups that might have learned to negotiate, compromise, and contract with each other, imposing conflict resolution through its own organizations. It removed some prerogatives from chiefs while granting them others greater than those chiefs had ever known. Although power concentration was already endemic, colonialism strengthened it, making it harder to overcome in the postcolonial period. [44]

By the tenets of Western economics, the old African ways were inferior to the colonial set. Neither war nor the melding of land and labor through slavery nor beads as money nor economic decisions by chiefs is an efficient way to conduct an economy. Land registers, free markets, commercial and central banking, and Western law are much superior. What the colonial powers did not understand, however, was that land registers and law courts and central banks and parliaments are organizations, not institutions, and an institution cannot be imposed from outside. But even worse, whatever progress Africans might have been making in the direction of appropriate institutions was cut off. This is illustrated in the following subsections, where the colonialist governments' handling of land tenure, the monetary system, and public administration are considered. Law will be treated in the next major section.

Land Tenure

While the boundaries of European countries had been determined over centuries by war, negotiation, compromise, and treaty, Europeans drew those of Africa in one fell swoop in Berlin in 1884-85, with no African participation. They cut boundaries down the middles of tribal territories, thus setting up irredentist wars that continue today. They set up power statuses among Africans that tend today to perpetuate the very wars the Europeans were trying to end.

Europeans imposed upon Africans the distinction between sovereignty and ownership of land. In virtually all the colonies where they settled as farmers, Europeans declared themselves landowners by the legal instruments of their own governments. Vicious as these seizures were, they may have been no more so than earlier seizures by other Africans. But there was a major difference. Before colonialism, land taken by conquest could be regained by conquest. With colonialism, however, the military power of the conqueror was so great that seizure was "final." Thereafter, land transactions would be settled by the laws of the conquerors, [45] at least until independence in the 1960s.

In an earlier publication, I have outlined traditional African land systems, with examples from different peoples. [46] These systems differed greatly among tribes and nations, some with provision for "migrating" land (land patterns that remained the same, each piece relative to the others, as the tribes moved), some with maternal and some with paternal inheritance, some with maternal inheritance but husband control, and so on. Bohannan has described spatial concepts of land tenure that are strange to a person of Western orientation. [47] Usually a tribal chief would assign land to families, who would live in compounds, a man and a hut for each of his wives. The chief might allocate land to strangers who had come to live in the village, or he might periodically reallocate land among families according to need.

Maximum economic development requires that these customary features change to fee-simple ownership and free alienation, so that land may move to its most efficient uses. [48] In many African states, therefore, land tenure was changed to fee-simple ownership, partly by the colonial powers and partly by the successor independent governments. But the Western ethic that land use should be determined by the farmer, not the chief, is not widely accepted in Africa. Many chiefs, now become political officers, took much land for themselves. Some land was put into state-sponsored "cooperatives," which facilitated state control.

Could African land tenure have evolved otherwise? (The "might-have-beens" of history are treacherous, but sometimes unavoidable.) The essential groups were already in place, which might have allied themselves with each other to bargain with chiefs over land use: clans and families, age sets among warriors, village elders, nobility in some societies, neighboring villages, or even nations. Ownership is a bundle of rights over cultivation, enjoyment of product, taxation, marketing, and the like, which might have been negotiated piecemeal or in differing combinations. All this was cut off by colonialism. Because European governments endorsed the sovereignty of chiefs, when in fact many checks and balances had been developed by the Africans (see Powelson 1988), colonialism left the African state and its rulers with much greater power over land than they had previously held. In the next chapter I will show how this concentration of power has impeded current economic development.

The Monetary System

Credit systems existed in pre-colonial times. But instead of linking with these systems, the colonial powers started from scratch, as if none of them existed. Branches of foreign banks, and the home-country central bank, were employed. Transfers, even between neighboring African countries, passed via London or Paris, often requiring weeks in transit. Usually Africans did not use these banks, not because they were legally barred but because access was made difficult. A recommendation from a "reliable person" may have been necessary to open an account. In Egypt, an indigenous private bank for industrial and commercial development was established in 1920, [49] but it was an exception, and it did not function in sub-Saharan Africa.

A new currency was introduced — rupee in East Africa, franc in French territories. The old currency — beads or copper bars or shells or whatever — was not recognized by the colonial powers and could not be exchanged for the new. A common way to introduce the new was to impose a hut tax payable only in currency, then to offer Africans cash jobs to earn the money to pay it. [50] New stores with new goods tempted them to want the new money. The old currencies died out, and holders lost their value.

Nothing prevented the Africans from using traditional lines of credit, however, whose survival through the colonial period shows they are well and strong. But the traditional lines were discouraged from developing into modern banking and were never integrated into the imposed system. For example, local moneylenders normally could not resort to city banks for, say, seasonal agricultural credit. By preempting the various functions, city banks prevented African moneylenders from evolving into banks themselves, as European goldsmiths had done two centuries earlier. African creditors and debtors acquired limited experience with the institutions of modern banking and held little stake in them.

Public Administration

Competing hypotheses are offered about why the European powers occupied Africa: (1) for the wealth they could extract, (2) for strategic and military purposes, and (3) for trade. While all of these probably operated, in the cases of Britain, France, and Holland the third seems most persuasive, with a lesser bow to the second and little credibility to the first. British documents reflect the primary interest in trade and protecting the route to India. Unfortunately, in the European mind the Africans did not possess the requisite commercial laws, the banks, and the courts for trade or even a social basis for creating them. So the colonial powers founded these themselves. They could not do so, however, without becoming the government.

This is not a whitewash or even a charitable assessment. The colonial governments contravened their own morality, invariably giving themselves the benefit of any doubt. They took land and property as they wished. They paternalized the Africans, denigrating their systems without understanding them, and setting them aside wholesale. When they created their own legal and financial organizations, they allowed Africans access to them only insofar as this was convenient to the Europeans.

Popular opinion in the Western world holds that however they may have suffered under colonialism, Africans at least were educated or trained in European ways. They learned how modern institutions function, so that upon independence they might undertake their own trade, their own banking, their own adjudication, and their own parliaments.

Let me suggest differently. These organizations were not negotiated by groups with relatively balanced power. Instead of operating as they do in the industrial world, they became instruments by which the African power groups continued to seek their own advantage. As new wine (organizations) in old bottles (institutions), they retarded economic development rather than advancing it. Specific examples will be given in the next chapter. Let us now relate how preexisting power imbalances were cast into concrete under colonialism.

Europeans did not want to be bothered with petty disputes among Africans. They set out to confine their own administrations to matters affecting trade, finance, and the general peace, as well as the agriculture of their own settlers. [51] Although in principle the Parliament in London or Chamber of Deputies in Paris was the ultimate authority, for all practical purposes the local governor (European) held absolute power. In British East Africa, the district officer considered himself both ruler and paternalistic advisor of African chiefs. He was "responsible for law and order in his district, for the collection of revenue, and a host of statutory duties which . . . made him . . . a township authority, a registrar of marriages, a licensing authority, and an agent of the Administrator-General." [52]

Thus, the colonial governors were increasingly sucked into detailed decision-making on local affairs, affecting even how the Africans conducted their family lives. Two main forces were at work: (1) the desire for power on the part of low-level European functionaries who in no way could reach such authority at home, and (2) in Africa, economic and social systems that were so intertwined that intervention in one area led inescapably to another, and so on deeper and deeper. The colonial powers found themselves doing things they had never intended to do, and paying for them.

Perhaps the trap into which the colonial powers fell will be better understood by comparison with a modern example. History was repeated in 1993 when the United States and United Nations invaded Somalia for the humane reason of supplying food to starving people. They stepped into cultures that they did not understand; they were increasingly sucked into local disputes; they waged war and took on some of the attributes of a colonial government. [53]

In some ways, the colonial governors usurped powers previously held by African chiefs. But in other ways, they conveyed powers upon African rulers that these had never held before. For example, they partitioned jurisdictions, creating new chiefs or even kings. [54] Sometimes chiefs would persuade their European mentors to legalize powers they said were "customary" when this was not true or what was "customary" was in dispute or evolving.

As in Europe and elsewhere, empires in Africa had been forged by war. But also as in Europe and elsewhere, the wars were rarely absolute. Always the kind of society to which conquered people were attached was in some way negotiated, along with their rights. But the military power of the colonial conquerors was overwhelming, the racial differences obvious, and their sense of apartness so keen, that they launched a new kind of absolute authority. Vertical alliances with leverage were impossible. It was this authority, not the imperial rank, that African rulers would inherit upon independence.


By definition, the origin of customary law is not known. But precolonial African law was not all "customary." Indeed, it had plural origins that might rival the European. The Almoravids introduced Islamic law at least as far back as the eleventh century, and Warf Djabi, ruler of Takrur — later part of the Mali Empire — helped carry it into sub-Saharan Africa. [55] Omani traders and settlers brought it to the east African coast. This law existed side-by-side with tribal laws. "[I]n several . . . respects Somali customary law and Islamic law are . . . closely related." [56] In Zanzibar, Islamic law operated alongside European law. [57] Among the Ibo, secret societies made laws for their communities. [58] By settling disputes among trade houses, they must have contributed to commercial law.

Multiple jurisdictions in multiple empires brought as many kinds of law as they did judges. In the sixteenth-century Matapa kingdom south of the Zambezi River, "legal cases were heard regularly on the six holidays in every thirty days, and the ruler's judicial function was of considerable importance." [59] Hindu law drifted into eastern and southern Africa. The rulers of Saharan states felt a responsibility for justice and internal security to promote their long-distance trade. [60] Justice was performed by Muslim qadis. [61] While Islamic law in principle is immutable, in fact it has changed with the times. Although no record of trade cases exists, it is not difficult to suppose that participating traders might have negotiated with judges.

Yet Chanock points out for Malawi and Zambia in the nineteenth century: [62]

Power was obviously a crucial factor in what was "customary" compensation and it could be randomly exercised, as is clear from the recollections of a woman from Karonga: "People do that in our land. If a man has a claim on another and it is not settled, he seizes goods or children, and he who has been made to suffer innocently must go and beg the accused until he gives satisfaction."

With scattered sources, inadequate in total, only a partial understanding of law in the precolonial era may be gained. Probably a chief or judicial officer had considerable discretion in resolving disputes by customary or other law; he was influenced by his council; and together they tended to favor prestigious persons, including their own families. While the chief was to some extent constrained by custom, nevertheless he had the power to define "custom" and even to modify it.

Why the Europeans felt African Law was Inadequate

Following are ten ways in which European powers may have found African law wanting.

  1. African concepts of "binding" differed both among communities and from the European concept. Africans did have a concept of commitment, but it depended on personal relations, oaths, and sanctions: "courts are found not to insist on enforcing contractual obligations, but aim instead at settling the underlying dispute." [63]
  2. The fragmentation and fluidity of African societies implied diverse judicial processes, often unreconcilable. This diversity would discourage trade or agreements over territories of disparate jurisdictions. [64] In particular, there was no way to adjudicate land across jurisdictions.
  3. "African society traditionally did not recognize the distinction between private and public law." [65]
  4. Checks and balances to which Europeans were accustomed at home often did not exist in Africa, since legislative, judicial, and executive functions were usually combined. However, it was sometimes possible to appeal decisions to higher authorities. [66]
  5. "Indigenous African law is generally unwritten . . . because of its predominantly illiterate environment. . . . The African governments, their jurists and social scientists, do not regard their recordings or restatements as codes. . . . They have no statutory effect." [67]
  6. African law tended to be exhortatory and moralistic. "Large parts of the judgements of the Lozi courts read like sermons . . . 'the judges cite not past court decisions but actual instances of upright behavior. . . . [L]aw . . . is instantly exhibited in the conformity of upright people to norms.' " [68]
  7. The Europeans were accustomed to greater clarity of boundaries between jurisdictions, responsibilities of individuals, and scopes of authority, than were the Africans. [69]
  8. Historians debate whether African judgments were based on neutral legal principles or on the easiest way to restore peace, or both. Bozeman writes that "African courts are concerned above all with the restoration of order, social equilibrium, and the status quo." [70] But Mensah-Brown disputes this. [71]
  9. Because Africans did not always use judicial precedent, it was difficult for Europeans to know what the law was. [72]
  10. Perhaps the greatest chasm between European and African concepts of law is the African predilection for the supernatural and magic. [73]

Law under Colonialism

All of the above "inadequacies" were common to both European and Japanese law in earlier centuries. In both northwestern Europe and Japan, the law evolved into its modern form by negotiation among many groups, whose results were enacted by parliaments or in judicial decisions. With colonialism, however, African history took an irreversible turn.

As the colonial powers "preserved" African customary law, they took a paternal interest in it. They tended to view an evolving law as if it were immutable. Ignoring African ways of mediation and change, they frequently wrote down what they considered customary law to be. "Under the Natal law no. 19 of 1891 the native code became a legally binding enactment, and the living Zulu customary law, with all its virtues, was discarded and replaced by a rigid, written version of what the Administration wanted the Zulu customary law to be: thus submitting a lifeless, written image of Zulu customary law for the living reality of it." [74] Thereafter, the law was changeable only in European ways, through parliamentary enactments or court decisions, and not in ways familiar to Africans.

Thus, colonial law was dichotomized: one part — revised "customary" — for the Africans and another part — modern — for the Europeans. But the modern part always overruled the customary. By applying modern law, therefore, native judges in native courts might modify or overturn "custom," without referring the matter to a tribal meeting where anyone might speak one's mind. [75] In this way, the colonial government unwittingly increased the powers of the African judges.

As some Africans took on European ways — adopted Western clothing and were educated in Europe — they objected to being subject to native courts, with their livelihoods decided by untrained judges whom they considered inferior to themselves, and themselves being denied appeal. [76] Although African courts were gradually phased out after World War II, the position of these Africans was not fully resolved until independence.

In sum, the negative impact of colonialism on law was twofold. First, by imposing Western organizations for law and other public functions, it denied Africans the experience of negotiating these or others for themselves. Courts, juries, and judges, even to their British-style robes and wigs, sprouted on African soil and remained on into independence. Second, in many countries the prerogatives of local and tribal chiefs were emasculated under colonialism, and the power concentration in the central city continued into independence. By both contorting, preserving, and enhancing an existing power imbalance, colonialism had postponed the urgency to negotiate modern institutions. Upon independence Africa retreated into its earlier, power-skewed political processes now buttressed by a façade of modern economic and political organizations. These were turned into implements of even greater power concentration for the rulers. This evolution in no small way contributes to the present chaos in African economies.


  1. Bozeman 1976:124.
  2. For a few selected references to negative impact of warfare on trade and industry during African history, see Abir 1975:550; Alpers 1975:533; Birmingham 1976:239, 267; Fisher 1975:123, 127; Harms 1981:75, 83, 96; Hunwick 1976:282; Laroui 1977:155; Levtzion 1975:152, 179, 199-215; Levtzion 1976:144; Shinnie 1965:140; Unomah and Webster 1975:278; and Wilks 1976:439. For a few selected references to negative impact of warfare on agriculture during African history, see Birmingham 1976:234; Hopkins 1973:143, 218; Horton 1976:100; Laroui 1977:274; Richmond 1977:67; Rodney 1975:300; and Stevens 1966:105.
  3. Laroui 1977:97.
  4. Laroui 1977:283.
  5. Laroui 1977:146.
  6. Laroui 1977:168.
  7. Gray 1975:2.
  8. Hunwick 1976:293-94, 298.
  9. Hunwick 1976:274-76.
  10. Fisher 1975:130.
  11. Curtin 1976:352.
  12. Marks and Gray 1975:385ff.
  13. Adeleye 1976:586.
  14. Fisher 1975:105.
  15. Levtzion 1975:200.
  16. Fisher 1975:106ff.
  17. Adeleye 1976:594.
  18. Rodney 1975:229.
  19. Birmingham 1975:336-42.
  20. Marks and Gray 1975:429-35.
  21. Alpers 1975:532.
  22. Alpers 1975:478ff.
  23. Alpers 1975:491.
  24. Abir 1975:564-71.
  25. Deschamps 1976:394.
  26. Suret-Canale and Barry 1976:499.
  27. Johnson 1976:99.
  28. Levtzion 1975:216.
  29. Rubenson 1976:57.
  30. Chanock 1985:194.
  31. Birmingham 1976:227.
  32. Omer-Cooper 1976:324.
  33. Smith, Abdullahi 1976:175.
  34. Gray 1975:6.
  35. Laroui 1977:257.
  36. Hunwick 1976:268.
  37. Harms 1981:156.
  38. Chanock 1985:18-19. He refers to Roberts 1976:80, 81, 141 (reference in my bibliography is to revised edition, 1979) and 1973:295.
  39. Birmingham 1976:229.
  40. See chapter 5, pp. 70-73.
  41. Miers and Kopytoff 1977:23, quoted in Chanock 1985:161.
  42. Domar 1970:18-31. He cites V. Kliuchevsky, Kurss russkoi istorii, Moscow 1937.
  43. Fogel and Engerman (1974) found slavery to be profitable to U.S. plantations.
  44. I am indebted to my student Henry Christian Bierwirth, who with his research helped me develop this idea.
  45. Some accommodation was made for tribal ownership, analogous to Indian reservations in the United States. Other than that, even land left in African hands was to be adjudicated according to European laws.
  46. Powelson 1988: Chapter 20.
  47. Bohannon 1963:101-11.
  48. This assertion is disputed, but I prefer not to join the argument here. I base my statement on classical economic theory as well as on the recent misfortunes of socialist economies.
  49. Richmond 1977:200.
  50. This process is described in a novel by Huxley (1964).
  51. For British East Africa, these generalizations rely principally on Morris and Read 1972.
  52. Morris and Read 1972:19.
  53. This is attested to by many newspaper articles, among them Mitchell, Alison, "Marines in Somalia Try to Rebuild a Town Council," New York Times, 1/18/93; Schemo, Diana Jean, "Marines Search Somalis' Homes for Arms but find `Hatfields and McCoys,'" New York Times, 2/16/93; "U.S. Envoy Warns a Somali Leader," New York Times, 2/24/93; and Lewis, Paul, "U. N. Asks Arrests of Somali Killers," New York Times, 6/7/93.
  54. Chanock 1985:34.
  55. Levtzion 1976:129.
  56. Anderson 1956:73.
  57. Anderson 1956:71.
  58. Rodney 1975:265.
  59. Marks and Gray 1975:389.
  60. Levtzion 1976:145-46.
  61. Hunwick 1976:292.
  62. Chanock 1985:164.
  63. Bozeman 1976:242-43.
  64. Phillips 1956:92; Alpers 1975:482.
  65. Poirier 1956:156. My translation from the French.
  66. Schapera 1956:103.
  67. Mensah-Brown 1976:23-25.
  68. Chanock 1985:30, citing Gluckman 1972.
  69. Chanock 1985:32; Van Velsen 1957:83,82.
  70. Bozeman 1976:243.
  71. Mensah-Brown 1976:30.
  72. Mensah-Brown 1976:33-34. There are, however, some instances in which precedents were used (Gluckman 1955:253).
  73. Bozeman 1976:228.
  74. Holleman 1956:232.
  75. Barnes 1967:164, cited in Chanock 1985:41.
  76. Morris and Read 1972:135-36.

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