The 'Native' Undefined: Colonial Categories, Anglo-African Status and the Politics of Kinship in British Central Africa, 1929-38

Author(s): Christopher Joon-Hai Lee Reviewed work(s): Source: The Journal of African History, Vol. 46, No. 3 (2005), pp. 455-478 Published by: Cambridge University Press Stable URL: http://www.jstor.org/stable/4100640 . Accessed: 23/08/2012 18:36
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp

.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Cambridge University Press is collaborating with JSTOR to digitize, preserve and extend access to The Journal of African History.

http://www.jstor.org

Journal of African History, 46 (2005), pp. 455-78. ? 2005 Cambridge Printed in the United Kingdom doi:Io.IoI7/Sooz1853705ooo86I

University

Press

455

THE'NATIVE' UNDEFINED: COLONIAL ANGLO-AFRICAN STATUS CATEGORIES, AND THE POLITICS OF KINSHIP IN BRITISH CENTRAL AFRICA, 1929-38
BY CHRISTOPHER JOON-HAI LEE

University of North Carolina, Chapel Hill

ABSTRACT:

This article examines the categorical problem that persons of 'mixedrace' background presented to British administrations in eastern, central and southern Africa during the late 1920O and 1930s. Tracing a discussion regarding the terms 'native' and 'non-native' from an obscure court case in Nyasaland (contemporary Malawi) in 1929, to the Colonial Office in London, to colonial governments in eastern, central and southern Africa, this article demonstrates a lack of consensus on how the term 'native' was to be defined, despite its ubiquitous use. This complication arrived at a particularly crucial period when indirect rule was being implemented throughout the continent. Debate centered largely around the issue of racial descent versus culture as the determining factor. The ultimate failure of British officials to arrive at a clear definition of the term 'native', one of the most fundamental terms in the colonial lexicon, is consequently suggestive of both the potential weaknesses of colonial state formation and the abstraction of colonial policy vis-ai-vis local empirical conditions. Furthermore, this case study compels a rethinking of contemporary categories of analysis and their historical origins.
KEY WORDS: Malawi, colonial administration, race.

This is a young country and problems will arise in the near future which will have to be dealt with, and the more these problems can be foreseen and provided for the less trouble there will be later on ... great care should be expended on the expression 'native of Africa'. This is defined as meaning a person 'born in Africa who is not of European or Asiatic race or origin'. This would mean that those who have European or Asiatic blood in them, however little, could come under the heading European or Asiatic. Take a Cape boy, for example, is he a native of Africa or is he, if of partial European descent a European, or if of partial Malay descent is he an Asiatic ? This thorny question is bound to arise in the near future and it would appear as if this lack of clear definition opens the door to a lot of argument.1 ON 28 June 1928, Ernest Carr of Blantyre, Nyasaland, sold a Ford lorry (Registration Number B. T. 646) to Suleman Abdul Karim of the neighboring town of Limbe. A written agreement was reached determining that the lorry would be paid for as follows - ?3o down, ?20 on 31 July and the remaining ?s5o to be paid in monthly installments of ?io starting 31 August 1928.2 All told, the outcome of this unremarkable business transaction was
1 Nyasaland Times, 6 Oct. 1922, 2. Malawi National Archive (henceforth

MNA) J5/2/73:46,

fol. I.

CHRISTOPHER LEE JOON-HAI 456 intended to be resolved expeditiously and, from all foreseeable standpoints, quietly: the Ford would be paid off by the new year of 1929. The minor historical expectation that this business agreement had promised, however, was not to be fulfilled. Two payments were made, an initial one on the day of sale for ?3o and a second one several months later on 16 November, this time for only ?8. Karim defaulted on the remaining payments. Moreover, he failed to make an agreed-upon insurance premium payment of ?io to the African Guarantee and Indemnity Co. Ltd., for which Carr was the local agent. Despite his failure to uphold their agreement, Karim had not returned ownership of the lorry to Carr. Consequently, after several more months of unfulfilled waiting, a claim against Karim came before the High Court of Nyasaland on i i April 1929 in Limbe.3 In a move illustrative of the contingencies of history, the adjudication of this case decided not only the fate of a Ford truck but also, in part, the fate of persons of 'mixed-race' background in colonial Nyasaland. During the trial Karim unexpectedly sought 'non-native' status. In the court ruling handed down just over a week later on 19 April, presiding Judge Haythorne-Reed wrote the following regarding this course of action: Defendant states that he does not wish to take the defense that he is a native. The Court however must consider this, and I therefore ask him who were his parents. He says his father was an Indian and his mother a native. By the Credit Trade with Natives Ordinance 1926 (15) a native is defined as a native of Africa not being of European or Asiatic race or origin; accordingly for this Ordinance a native means a native of Africa who is not of European or Asiatic race or origin, and all others are non-natives.4

Haythorne-Reed therefore decided in his opinion that the defendant held 'non-native' status. To clarify his legal position, he added the following more general statement to his ruling: A person's race or origin does not depend on where he or she is born, just as being born in a manger does not make a person a cow, or a child of European parents being born in India or China is not therefore an Indian or a Chinaman. Race depends on the blood in one's veins, and the words used 'race or origin' seem to have been chosen to include half-castes; otherwise I do not know why the word origin was used, or what sense I can give it additional to the word race.5 As a result Karim was a 'half-caste Indian ... of Indian origin'.' Karim admitted to the debt and asked for time to pay it off. The court agreed with payment, in addition to court fees, to begin on i May.7 This essay is concerned with the relationship between identity and colonial state power. It is focused specifically on colonial categories of rule - their

in the Nyasaland who frequentlyranadvertisements 3 Ibid. Carrwas a local auctioneer Times during the I92os. 4 MNA J5/2/73:46. See also MNA sI/7o05/3o, 19 Apr. 1929, fol. 3. Adding a degree of
mystery to the case, this ordinance, which prohibited the lending of credit to 'natives', could have protected Karim from prosecution had he claimed 'native' status. Carr instead would have been seen at fault. It is uncertain why Karim undertook this position and
strategy. 5 MNA J5/2/73:46.
6

Ibid.

7 Ibid.

457 racial basis and euphemistic corollaries - and the ways in which they were shaped by local conditions. This article is also concerned with connections - the contingent ways in which African and European communities were tied together - by centering within this discussion the status of persons of 'mixed-race' background, a social group frequently marginalized in Africa's historiography.8 The court case of Carr v. Karim sparked a series of unexpected events, the full dimensions of which were unintended by the British colonial administration in Nyasaland. Among them were the formation of a politically active 'Anglo-African' community that sought state recognition as well as various social benefits such as civil service jobs and separate educational facilities.' More broadly, this case opened a discussion that circulated among colonial officials throughout east, central and southern Africa regarding the categorical definitions of 'native' and 'non-native'. This discussion developed during a crucial period when indirect rule was gaining momentum throughout British Africa. 'Mixed-race' individuals complicated these distinctions through their kinship connections to African, European and Indian communities. The expression 'colonial kinships' is consequently proposed here as a means of thinking about these sets of connections that developed throughout the continent but which have drawn uneven conceptual attention from historians thus far.10 This article therefore argues that despite its initially minor surface implications, the impact of this case provides insight into colonial state formation and state power, specifically the ambiguities, contradictions and organic, improvisational nature of their existence, in contrast with more essentialized understandings predicated on a domination-resistance paradigm that has influenced many aspects of African historical scholarship since the i96os.1' Sumit Sarkar, a historian of South Asia, has written that "'unimportant" events of no obvious consequence which stick out and refuse to fit into any of the established patterns of historical reconstruction' are valuable insofar that they 'afford oblique entry points into social history and can throw light upon dimensions obscured by
dominant - all too often teleological
8

THE'NATIVE'

UNDEFINED

- analytical

frameworks'."12

This essay

'Conflict and connection: rethinking colonial African history', American Historical

Review, 99 (1994), 1516-45-

My concern for the theme of connections stems in part from FrederickCooper,

9 'Anglo-African' was a local term for persons of 'mixed-race' background. 10 For different examples in this field, see Gavin Lewis, Between the Wire and the Wall: A History of South African 'Coloured' Politics (Claremont, 1987); Owen White, Children of the French Empire: Miscegenation and Colonial Society in French West Africa, George Brooks, Eurafricans in Western Africa: Commerce, 1895-196o (Oxford, 2000); Social Status, Gender, and Religious Observance from the z6th to the z8th Century (Athens OH, 2oo3). For a parallel study in Southeast Asia with a marked depth of theoretical analysis, see Ann Laura Stoler, Carnal Knowledge and Imperial Power: Race and the
Intimate in Colonial Rule (Berkeley, 2002).
1 I am thinking here of the early work of Terence Ranger and Allen Isaacman. See Terence Ranger, Revolt in Southern Rhodesia, 1896-7 (London, I967); Allen F. Isaacman, The Tradition of Resistance in Mozambique: Anti-Colonial Activity in the

Zambesi Valley, z850-z921

12

He further describes these contingent events as 'akin, perhaps, to the Freudian slips of psychoanalysis', thus providing unexpected opportunities for historical analysis. See Sumit Sarkar, 'The Kalki-Avatar of Bikrampur: a village scandal in early twentieth

(Berkeley, I976).

CHRISTOPHER JOON-HAI LEE 458 seizes upon this prerogative, exploring the fallout of an event of 'no obvious consequence' with the direct intention of providing new insight into colonial bureaucratic thinking and the dialectics of identity and state power in colonial Africa.13

VISUALIZING

POWER: COLONIAL STATE IDENTITY POLITICS

FORMATION

AND

In his most recent book Seeing Like a State, James Scott has shifted his longstanding focus on forms of resistance to that of governance, specifically exploring the idea of 'legibility' as a central problem in modern statecraft.14 For Scott, 'legibility' is an organizing principle that connects such disparate state practices as census taking, language policy, urban planning and surname recognition. His comparative study examines attempts at 'legibility' through legal practice and bureaucratic procedure, as well as through visual and spatial manifestations such as land use and city design. In these multiple ways, 'legibility' in principle is linked directly to power, in his words: 'the greater the [state] manipulation envisaged, the greater the legibility required
to effect it'.15

Though Scott's study does not address colonial states, the transference of this term and concept can easily be made to the context of Africa."6 Indeed, existing discussions of ethnicity and colonial state rule have implicitly embraced such an idea.1 This was particularly the case during the interwar
century Bengal', in Ranajit Guha (ed.), Subaltern Studies VI: Writings on South Asian
History and Society (Delhi,
13

1992), 3, 4.

For a different view of this case, see Ibbo Mandaza, Race, Colour, and Class in Southern Africa (Harare, 1997), ch. 6. 14 James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human ConditionHave Failed (New Haven, I998), 2. On resistance, see James C. Scott, Weapons of the Weak : Everyday Forms of Peasant Resistance (New Haven, 1985); James C. Scott, Domination and the Arts of Resistance: Hidden Transcripts(New Haven, 1990o). 15 Scott, Seeing Like a State, 183. It should be noted that an immediate parallel can be drawn to Foucault and his studies of surveillance, power and the modern state. See Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York, 1977). For a relevant study influenced by Foucault's work, see Timothy Mitchell, ColonisingEgypt (New York, 1988). 16 Scott does use postcolonial Tanzania as an example. See Scott, Seeing Like a State, ch. 7. 17 Earlier work by Terence Ranger and Leroy Vail underscored how colonialism encouraged and often required demographic legibility as a means of control. See Leroy Vail (ed.), The Creation of Tribalism in Southern Africa (Berkeley, 1989); Terence Ranger, 'The invention of tradition in colonial Africa', in Terence Ranger and Eric Hobsbawm (eds.), The Invention of Tradition (Cambridge, 1983); Terence Ranger, 'The invention of tradition revisited: the case of colonial Africa', in Terence Ranger and Olufemi Vaughan (eds.), Legitimacy and the State in Twentieth-Century Africa: Essays in Honour of A. H. M. Kirk-Greene (Houndmills, I993). Other work pertinent to this discussion include Martin Chanock, Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge, 1985); Sara Berry, No Condition is Permanent (Madison, 1993); Thomas Spear and Richard Waller (eds.), Being Maasai: Ethnicity and Identity in East Africa (London, 1993); and Mahmood Mamdani, Citizen and Subject: ContemporaryAfrica and the Legacy of Late Colonialism (Princeton, I1996).

THE'NATIVE'

UNDEFINED

459

period when British colonial administrations were devising and implementing programs of indirect rule. French and Portuguese administrations similarly struggled during this period to define the boundaries of 'assimilation' and 'association' and the categories of indigena, ndo-indigena and assimilado, respectively."s Recent scholarship has further emphasized the continuities of such policies into the post-Second World War period, as bureaucratic rationalization in South Africa, for example, viewed principles of ethnic clarity as not merely cost effective or a technique of divide-and-rule, but as a fully modern, social-scientific means of efficient state governance.19 However, as suggested within many of these studies, the actual process of identifying ethnic groups and customary authorities to incorporate into state structures was frequently complex, with improvisation and invention characteristic. Local leaders and communities played active roles in the making and unmaking of these social orders.20 The linkage between state power and 'legibility', then, was not simple in colonial Africa, since state power itself was hardly simple. What centers Scott's study, particularly with its focus on autocratic states, is a relative presumption regarding the unitary nature of state institutions and state power.21 This problematic, if persistent, perspective on the modern state is a realm that has drawn critical attention among a number of contemporary scholars of colonialism over the past fifteen years. Reflecting upon conventional methodology in her field, Ann Laura Stoler - an anthropologist of Southeast Asia - has argued influentially that the 'anthropology of colonialism' has been a 'selective project', one that has largely focused on the colonized.22 Though such attention has been important for articulating local history and agency vis-a-vis narratives of colonial domination, the prevalence of such a position has created a conceptual blind spot: scholars must better complicate understanding of states and power in colonial settings. The term 'colonialism' itself has often taken the form of 'an abstract force, as a structure imposed on local practice', with colonial discourse consisting of 'a
18 On the French case, see, for example, G. Wesley Johnson, The Emergenceof Black Politics in Senegal: The Struggle for Power in the Four Communes,1900-1920 (Stanford, 1971); Alice L. Conklin, A Mission to Civilize: The Republican Idea of Empire in France and West Africa, 1895-i930 (Stanford, 1997). For the Portuguese, see Jeanne Penvenne, '"We are all Portuguese!" Challenging the political economy of assimilation: Lourenqo Marques, 1870-1933', in Vail (ed.), The Creation of Tribalism, 255-88. 19 Mamdani, Citizen and Subject; Ivan Evans, Bureaucracy and .Race: Native Administration in South Africa (Berkeley, 1997); Clifton C. Crais, The Politics of Evil: Magic, State Power, and the Political Imagination in South Africa (Cambridge, 2002), chs. 2, 3.

20 Among many studies, see, for example,A. E. Afigbo, The Warrant Chiefs:Indirect Rule in Southeastern Nigeria,1891-1929 (London, 1972); Shula Marks, TheAmbiguities in South Africa: Class,Nationalism,and the State in Twentieth-Century of Dependence Natal (Johannesburg, 1986). 21 The dynamicfor changein Scott's argumentis predicatedprimarilyon 'metis', or

policies of developmentand the like. 22 Ann LauraStoler, 'Rethinkingcolonialcategories:Europeancommunitiesand the

boundaries of rule', Comparative Studies in Society and History, 31I(1989), 134, 135. This

local, knowledge of subject populations, which complicates the blanket imposition of state

essay has been republished as chapter 2 in Stoler, Carnal Knowledge. I refer to her article

in this essay.

460

CHRISTOPHER

JOON-HAI

LEE

shared European mentality, the sentiments of a unified, conquering elite'.23 Such analyses essentialize power by placing various persons, ideologies and institutions under a single rubric, ignoring their vulnerabilities.24 The problematic interchangeability between colonial states and colonialism writ large - a consequence of domination-resistance paradigms developed needed to be by social historians during the I960s and 1970s s-therefore confronted. Scholarship in Africa has been suggestive as to where this line of thinking may be taken. John Comaroff has argued for a position that recognizes the existence of 'competing colonialisms' - state, missionary and settler - in one context. Unsatisfied with conventional images of colonialism as 'a coherent, monolithic process', he has urged concern for 'the tensions of empire, not merely its triumphs; with the contradictions of colonialism, not just its crushing progress'.25 In his study of labor and decolonization in French and British colonial Africa, Frederick Cooper casts similar light on colonial political economy, accounting for structural ambiguities stemming from incompatibilities between free market mechanisms and political control.26 Reviving studies of indirect rule, Mahmood Mamdani has pointed to the 'Janus-faced, bifurcated' nature of the British Dual Mandate system that integrated 'two forms of power [customary and colonial] under a single hegemonic authority'.27 These arguments combined have therefore served to complicate state institutions, ideologies and colonialism broadly defined. Colonial social orders were not only challenged by forms and expressions of African agency, but by the very terms and methods upon which European colonial control was based. As such, if 'legibility' is to be retained as a useful category for understanding the practice of colonial state power, it must be better situated within this context of competing institutions, ideologies and
processes.28

The historical conditions of Nyasaland fit well into this agenda of complicating colonial rule. English and Scottish missionary societies preceded the formal establishment of British rule in 1891, serving to create a Westerneducated class of Africans who presented an early challenge to colonial
23 Her emphasis. Ibid. She has further written, 'The terms colonial state, colonialpolicy, foreign capital, and the white enclave are often used interchangeably, as if they captured one and the same thing'. 24 Ann Laura Stoler, 'Perceptions of protest: defining the dangerous in colonial Sumatra', American Ethnologist, I2 (1985), 648. 25 John L. Comaroff, 'Images of empire, contests of conscience: models of colonial domination in South Africa', American Ethnologist, 16 (1989), 662. " amidst the 26 Cooper writes 'the inability of colonial regimes to maintain "dominance uneven effects of capitalism led them to deploy the "universalistic" conceptions of social engineering developed in Europe, only to find that their own hopes for such technologies to work required giving up the beliefs about the uniqueness of Africa on which a sense of "dominance" depended'. Frederick Cooper, Decolonization and African Society: The Labor Question in French and British Africa (Cambridge, 1996), io. 27 However, his employment of the term 'despotism' in 'decentralized despotism' is at times too strident. Mamdani, Citizen and Subject, I8. 28 Other important studies that have complicated notions of power and states in Africa include Bruce Berman and John Lonsdale, Unhappy Valley : Conflict in Kenya and Africa (London, 1992); Jean-Frangois Bayart, The State in Africa: The Politics of the Belly
(London, 1993); Achille Mbembe, On the Postcolony (Berkeley, 200oo).

THE

'NATIVE'

UNDEFINED

461

most strikingly of 1915, authority, through the Chilembwe Uprising but most persistently through the growth of native associations during the a significant presence 1920s and 1930s.29 Missions therefore constituted on the colonial landscape apart from state institutions. Added to this scenario were Europeans who acquired land as early as the i88os.30 As in other colonies, settlers formed a distinct set of interests that at times conflicted with state concerns. A sequence of agricultural failures - coffee, cotton and tobacco - between I900 and the I930s added further stress to this relationship, posing the question as to whether Nyasaland would become a settler colony as once anticipated. The gradual coercion of customary authorities into the state apparatus - through ordinances in i912 and Africans as exemplified 1924 - and the perceived threat of Christianized of indirect rule by 1933 by Chilembwe propelled the formal establishment through the Native Authority Ordinance and the Native Courts Ordiand nance, another step through which power was both consolidated disaggregated.31 Overall, Nyasaland fits into this research agenda. What is needed, however, beyond recognition of different sets of state and non-state actors on a common landscape, is better insight into the organizing principles of such diverse conditions, an understanding of the way these disparate elements worked together to create the picture of colonialism that has persisted for so long. The categorical distinction of 'native' and 'non-native' constituted one fundamental method of ordering colonial society into basic components, a of rule and implemented legibility conceptualized through philosophies
29 For the Chilembwe Uprising, see George Shepperson and Thomas Price, Independent African: John Chilembwe and the Origins, Setting, and Significance of the Nyasaland Native Rising of z9z5 (Edinburgh, 1958). For its impact on state formation and indirect rule, see Landeg White, '"Tribes" and the aftermath of the Chilembwe rising', African Affairs, 83 (1984), 533-6. On native associations, see J. van Velsen, 'Some early pressure groups in Malawi', in Eric Stokes and Richard Brown (eds.), The Zambesian Past: Studies in Central African History (Manchester, 1966), 376-412; Martin Chanock, 'The New Men revisited: an essay on the development of political consciousness in colonial Malawi', in Roderick J. Macdonald (ed.), From Nyasaland to Malawi: Studies in Colonial History (Nairobi, 1975), 234-53; Roger Tangri, 'Inter-war "Native associations " and the formation of the Nyasaland African Congress', TransafricanJournal of

History, I (1971), 84-102.

30 Early intervention was in part to encourage British colonial interest against Portuguese encroachment. See Leroy Vail and Landeg White, 'Tribalism in the political history of Malawi', in Vail (ed.), The Creation of Tribalism, I66. See also, Clement Ng'ong'ola, 'The state, settlers, and indigenes in the evolution of land law and policy in colonial Malawi', International Journal of African Historical Studies, 23 (1990), 28. 31 At the local level, the early reliance on appointed headmen was explained on the basis that local social institutions had been disrupted by slave raiding and the Yao and Ngoni incursions. As such, the shift to indirect rule may have been less dramatic in practice. Lord Hailey writes 'a contrast drawn in these terms suggests that there has been a change of system more radical than that which actually occurred'. The change between 1912 and 1933 'lay rather in the scope of the powers assigned to it, and the purpose to which its employment pointed, than in the character of its personnel. That is not to say that the change was not material, but it was a change in policy and objective, rather than in the personnel employed in practice'. See Lord Hailey, Native Administration in the British African Territories, Part II. Central Africa: Zanzibar, Nyasaland, Northern Rhodesia (London, I950), 27.

462

CHRISTOPHER

JOON-HAI

LEE

through practices of law and everyday social discourse. Yet, as demonstrated here, consensus failed when firm definitions were needed. This essay is less interested, then, in providing a case study of African agency or yet another set of historical conditions that confounded colonial policy, and instead posits that the very terms that underwrote colonial hegemony - 'native' and 'non-native'-were themselves, at a universal level, undefined. The deliberations of definition that took place during the 1930s following the Haythorne-Reed ruling expose tensions and contradictions within state vision and power. This article therefore contributes to this agenda among scholars of colonialism by utilizing 'legibility' as a baseline, but showing the intrinsic problems of achieving this principle under certain circumstances, thus underscoring the ambiguities and vulnerabilities of state power.
LEGIBILITY IN PRACTICE: THE TERM THE PROBLEM OF DEFINING

'NATIVE'

On 28 July 1929, the first meeting was held of what was to become the AngloAfrican Association of Nyasaland. Present were 19 men. As with many political organizations, a recent event inspired this assembly as well as longer-standing concerns and grievances. As cited in the meeting minutes, the association was created 'at the suggestion of the Blantyre District Commissioner' who mentioned that due to the Haythorne-Reed ruling 'our status was entirely changed'.32 Thomas Merry, secretary at the meeting, remarked 'there were also clauses in already existing Ordinances which would now apply to us, and certain of them may prove a hardship to parts of the community and some possibly an advantage and that the only way to overcome this difficulty would be to form an Association and select a capable Committee and meet the Provincial Commissioner and the District Commissioner'.33 Thus began an association that attempted to define a new community unique to the colonial period.34 The local politics of 'mixed-race' identity sparked by this organization, which lasted through the 1950s, became as much a question of 'native' identity as of how to identify those of part African, European or Indian background. Despite Haythorne-Reed's argument for the importance of origin, defining the category of 'native' was not an automatic task. Beyond specific mention in local laws and ordinances, no general definition or protocol existed. Regardless of what racial or cultural notions may have been carried consciously or surreptitiously to Nyasaland, a process of on-the-ground definition took place, illustrating the contingent, improvisational nature of colonial rule. This process of definition was itself encompassed in a separate file of correspondence and debate entitled 'The definition of the expression "native"'.3' The question of definition
32 MNA NS I/3/2, fol. I, I. See also MNA sI/7o05/30,
July
1929,

fol. i, 31 Mar. 1930; fol. Ia, 28

fol. I, I.

of the Anglo-African Associationand its activities,see 34 For an extendedexamination Joon-HaiLee, 'Colonialkinships:the BritishDual Mandate,Anglo-African Christopher status, and the politics of raceand ethnicityin inter-warNyasaland,1915-1939' (Ph.D. thesis, StanfordUniversity,200oo3).
s MNA SI/420/33, the definition of the expression 'native'.

I.

33 MNA

NS

1/3/2,

THE

'NATIVE'

UNDEFINED

463

eventually took on a regional perspective, with Nyasaland officials seeking the governing experiences and policies of other British colonies to inform their thinking. Given its then-inclusion in the East Africa group, officials throughout British East Africa were consulted in particular, though officials in Northern and Southern Rhodesia, South Africa and the Colonial Office in London also played vital roles.36 The term 'native' was a key organizing principle of colonization in Africa as it had been in India and elsewhere, constituting an idea and representation for purposes of policy as well as a practical term of everyday use. Though its ubiquity is suggestive of a general understanding and acceptance, it typically met local conditions that often multiplied the ways in which the term was used and held meaning. Nevertheless, it also served as short-hand for gathering and organizing the vast social heterogeneity colonial states encountered. During the interwar period, the issue of 'native policy' drew the attention of a number of commentators from political and academic communities alike."37 Jan Smuts, who straddled both worlds as Prime Minister of South Africa and one-time Chancellor of Cambridge University, commented that native policy was far and away the most important issue which is raised by our European contact with the African continent and its peoples. The policy or policies which the European peoples are going to pursue towards the natives of Africa will have far-reaching effects, not only for Africa, but for the future of the world.38 One broad result of such discussion during the 1920os and 1930s was the implementation of systems of indirect rule in colonies under British control, a move that was cost-efficient and respected ideas of cultural difference then current, while also ensuring continued control over territory.39 Though framed in terms of 'tribe' and 'native', these expressions - integral to the language and discourse that constituted such systems - were euphemisms for broader understandings of racial difference. However, despite the early and piercing anti-colonial work of such thinkers as Frantz Fanon, it is surprising to note how little attention has been granted by contemporary scholars to this observation, and to the local practices and pathways of racial discourse in Africa.40 Such oversight at times appears as a slippage into the ethnically based perspective that exonerated colonial racism, a methodological decision based on contemporary aspirations for
36 MNA SI/420/33,
37
38

fol. I. 1938).

Key contributions include Lord F. Lugard, The Dual Mandate in British Tropical Jan C. Smuts, 'Native policy in Africa', Journal of the Royal African Society, 29
1923); Lord W. M. Hailey, An African Survey (London,

Africa (London, (1930), 248.

39 For a discussion of the dialogue between race, culture, and state policy, see, for example, Saul Dubow, Racial Segregation and the Origins of Apartheid in South Africa,
I919-1936
40

(Oxford, 1989).

Dubow's work is a noted exception. For other attempts at cracking this problem, see Clifton C. Crais, White Supremacy and Black Resistance in Pre-Industrial South Africa:
The Making of the Colonial Order in the Eastern Cape, 1770-1865 Struggles in Lourenfo Marques, 1877-1962 (Portsmouth (Cambridge, 1991);

Jeanne Penvenne, African Workers and Colonial Racism: Mozambican Strategies and
NH, 1995); Jonathon Glassman,

'Slower than a massacre: the multiple sources of racial thought in colonial Africa',
American Historical Review, 109, 3 (20zoo4),720-54.

464

CHRISTOPHER

JOON-HAI

LEE

greater analytic precision, but nevertheless possessing the danger of revalorizing a particular colonial outlook.41 In settler colonies, even those such as South Africa where white communities had lived for centuries, the term 'native' was applied to a person who was black. Geographic origin and culture, though cited, had less bearing on the term's prosaic definition. The point at which the category of 'native' became complicated occurred when racial lines were crossed. Because the expression 'native' conjoined race with culture, such complication in principle could happen in one of two ways: through acculturation to European practices - converting to Christianity or receiving Western education, for example - or through miscegenation. The former was undoubtedly more common with French debates over 'assimilation' and 'association' exemplifying the potential administrative problems of such processes of transculturation. However, the latter posed complications that were perhaps even less easy to decide upon, given more direct connections of genealogy and kinship.42 Such connections and their impact on status were of particular concern to members of the Anglo-African Association. Minutes from the inaugural meeting of the Association were sent to the Nyasaland government for consideration.43 The key issues outlined were legal and social status: the most important question above all was that of establishing our status ... [W]e humbly appeal to the Government that when framing any Ordinances concerning our community, especially with regard to our status, to kindly avoid, as far as possible, the scourge with which we have been initiated, namely, the term, 'HALFCASTE ).44

The Association argued that there were 'millions of similar people' like them 'domiciled in various countries' and that the term 'half-caste' did not offer 'any compliment'. They felt a subsequent need to 'replace this painful designation by something more appreciative' and by establishing 'kindly relationship with all sections of the communities of this country' such transformation could be achieved." With status as a basis, other subjects raised included welfare and education for children, taxation, higher employment wages and a census.46 Government response at the district level expressed interest and support for the Association's formation. 'In my opinion all their requests are reasonable. I believe that the formation of an Anglo-African Society would be useful', wrote one official. 'They might even at some point form part of a Defence Force'. He noted they were 'not popular amongst the natives from whom they keep aloof and circumstances have cut them off from Europeans'. They were, however, 'very loyal to the British Government'
This point is made with full awareness that ethnic identities had local meaning. However, the complex historical interaction between race and ethnicity has been fleetingly addressed by historians. 42 For example, apartheid measures against South Africa's 'Coloured' community were, in a sense, more transparently racist, given the common language and many cultural practices shared between white and 'Coloured' South Africans. 43 MNA sI/7o05I/30, fol. I, 31 Mar. 1930; MNA sr/7o05I/30,Minutes Section, No. 5, 24
Apr. I930.
45
41

Ibid.

44 MNA si/705I/30,

fol. Ia, 28 July 1929, 3; MNA NS 3/3/2,

46

Ibid.

I-8.

465 with an admirable aim 'to raise themselves and prove worthy of the citizenship they have inherited'. Such a 'clean, law abiding, respectful community' therefore deserved government attention and legislative consideration as 'a separate class'. 'We have thus amongst us a community to which we pay very little attention', summed the official, 'yet one which would willingly serve us and which is struggling against odds'.47 Thus began the relationship between the state and this new organization and community. The Southern A. J. Provincial Commissioner, and the District Commissioner for A. G. Brackenbury, Blantyre, O. Hodgson, attended a subsequent meeting of the Association on 23 April 1930, with their attendance generating a second extensive memorandum.48 The administration's response to this report was not simple and markedly less enthusiastic. A brief handwritten note from the Colonial Secretary to the Attorney General commented: 'I think this is likely to be a very difficult
THE 'NATIVE' UNDEFINED

problem'.49

An initial problem perceived was the question of citizenship. Was a person with a British father automatically a British citizen?5o The Attorney General's response on this matter did not find fault with the HaythorneReed ruling, though in his mind the issues of racial origin, nationality and citizenship should be kept separate. Origin and race are wholly distinct matters from Nationality. All persons born in a country which is under British rule are natural-born British Subjects but the acquisition of such Nationality has no bearing on their race or origin. A European, Indian, Half-caste and native are alike British Subjects but their race or origin is not influenced by the fact.51 His briefing hinted at the complexities involved when deliberating the confluence of such categories. The assertion that these were 'wholly distinct matters' still left open the question of civil status and the broader complication of categorical transgression posed by 'mixed-race' individuals. Many Anglo-Africans were born out of wedlock, thus undermining at one level the issue of whether citizenship would automatically be conferred by the father.52 Nevertheless, it was concluded that 'most of the aspirations of the half-caste community can only be realized by special legislation' and such a course of action would need the approval of the Colonial Office and 'probably necessitate analogous enactments in the adjacent Territories'.53 47MNA sI/7051/30, Minutes Section, No. 5, 24 Apr. 1930. This memorandumre-emphasized issues addressed at the inaugural meeting, specificallythose of terminology,registration, taxes, child welfare,educationand a census. An indicationof their strong desire to be seen as separateand loyal was their will48

ingness to pay a higher tax. As the memorandum pointed out, 'They observe that at present they pay nothing towards the public revenue, not even a hut tax, and that perhaps a Poll Tax of ?i would meet the situation, but they do not want it said that they are inferior to the Indians because the Indians pay a ?2 Poll Tax and that therefore they are not such useful citizens. Those who can afford it would prefer to pay a Poll Tax of ?z'.
See MNA sI/705I/30o, fol. 2, 24 Apr. 1930, I, 2.

49 MNA sI/7051/30, Minutes Section, No. 6, 30 Apr. 1930. 50Ibid. 52Ibid. Minutes Section, No. 7, 16 May 1930. 51MNA s1/7051/30o, about what to do, 53Ibid. It should be noted that in additionto this correspondence there was further correspondenceabout who initiated this situation, focusing on B. J. FairfaxFrancklin,District Commissioner at Mzimba.See MNA sI/705I/30, fol. 4,

466

CHRISTOPHER

JOON-HAI

LEE

Governor Thomas of Nyasaland consequently wrote a confidential letter to Lord Passfield, Secretary of State for the Colonies, in November 1930 describing the situation in detail. Referring to the Attorney General's comments, Thomas remarked: children born in lawful wedlock of the union of Europeans and Indians with native women acquire the nationality of the father, but that under the ruling of the Judge the illegitimate offspring of such unions are merely non-natives under the Protection of the Crown. It may be said with certainty that practically all those persons under discussion were not born in lawful wedlock, and the question therefore arises as to their position under the law.54 Thomas described Anglo-Africans as 'able to obtain employment' and regarded as a 'quiet and law-abiding people, as a rule more intelligent than the average native'.55 He underscored that 'they are not regarded by the natives as belonging to the native community'.56 Thomas thus depicted a social group that fell between civil and customary law, with status and equity in question.57 He regarded a new, separate status as creating 'a most parlous position' in its effect on existing ordinances.58 Despite recommendations from other Nyasaland officials - including the Attorney General, Treasurer and Senior Provincial Commissioner - for such enactment, Thomas was hesitant, stating: 'However much one may sympathise with the plight of these unfortunate people, it cannot gainsaid that they are to be found in most, if not all, tropical African Dependencies and, so far as my information goes, they are everywhere regarded as natives'." This universal perception and ad hoc inclusion became a complicated premise, however, as officials deliberated as to how the term 'native' was defined. In South Africa, the case of the Cape 'Coloured' community could have provided a solution for other colonies to follow. The definition of 'native' as it pertained to the South African Native Administration Act of 1927 did not include persons of 'mixed-race' background as long as they did not 'live as natives'.6' For the purposes of pass laws under the Natives Urban Areas Act of I923, 'Coloured' South Africans were not included in this legislation. Under this act, the expression 'Coloured person' was defined as 'any person of mixed European and Native descent and shall include any person belonging to the class called Cape Malays'.61 Existing tax laws under the Natives Taxation and Development Act of 1925 also excluded any persons of European descent unless they were living in a manner deemed as 'native'.62 Overall, 'Coloured' persons were not 'native' under the law, thus supplying one possible option for British administrators to consider.63

14 July 1930; MNA sI/7o05/30, fol. 5, 14 July 1930; MNA sI/705I/30, fol. 6, 16 July fol. 8, 4 Aug. 1930. 1930; MNA sI/705I/30, fol. 7, 6 Aug. 1930; MNA si/7o05/30, 54 MNA sI/705I/30, fol. 10, 6 Nov. 1930, I, 2. 55 Ibid. 56 Ibid. 58 Ibid. 57 Ibid. fol. 10, 6 Nov. 1930, I, 2. It should be noted that the Acting Chief 59 MNA sI/705I/30,

Secretary, agreeing with Thomas, thought they should be placed in the category of
natives.
61

60 Public Record Office (henceforth PRO) CO 822/36/16,

fol. 39.

62 PRO CO 822/36/16, PRO CO 822/36/16, fol. 40. fol. 42. 63 It was not until the apartheid period that 'Coloured' South Africans would face a separate institutional and legal structure similar to black, or 'native', South Africans.

467 In Southern Rhodesia, the definition of 'native' as it applied to the Native Urban Locations Ordinance of 1906 and the Native Pass Ordinance of 1913 stipulated that both parents must be African.64 Regarding land tenure, the Land Apportionment Act of 1929 defined 'native' as a person who had 'the blood of such tribes or races' and lived 'after the manner of natives'.65 Tax law similarly followed both descent and lifestyle.6" Southern Rhodesia therefore paralleled developments in South Africa: racial descent coupled with lifestyle determined status. It is noteworthy that in both Southern Rhodesia and South Africa, separate schools had been established for 'Coloured' children.67 these cases, the High Commission Territory of Supplementing Bechuanaland held the term 'native' as including, for tax purposes, 'all persons of mixed race living as members of any native community, tribe, kraal or location'.68 Swaziland also included persons of 'mixed' background in the definition for purposes of debt. Corresponding to South Africa and Southern Rhodesia, separate schools had been established for 'Coloured' children in both territories.69 In sum, a semblance of uniformity, if unofficial, existed, with factors of inclusion or exclusion dependent on variables of origin and cultural practice. The degree of white settlement or, conversely stated, the relative size, presence and priority of 'native' communities in shaping administrative matters also appears to have figured into official thinking. The large size of the Cape 'Coloured' population undoubtedly generated deeper concern and thinking on such matters in South Africa in contrast to Swaziland, for example. Nevertheless, given these pre-existing measures, questions of uniformity vis-a-vis the category of 'native' and the issue of special legislation continued to form the basis of discussion as it turned to colonies in East Africa.71 The Colonial Office held a meeting in London in January 1931 to address conclusively the issue of definition.71 General agreement existed on the logic of the Haythorne-Reed ruling regarding the significance of origin, though debate ensued as to the additional role of culture in determining status. A Southern Rhodesia law - the Arms and Ammunitions Ordinance No. 2 of 1891 - was cited as an example of a strict descent argument, though it was turned down on grounds that it 'followed very closely the American definition whereby it is impossible for anyone who has any aboriginal blood - however little it may be - in his veins to be considered a nonnative'.72 A Northern Rhodesian definition that included a cultural component was also considered, though this was seen as inadequate since it would not cover groups such as the Swahili who were typically viewed as 'native', though from a cultural standpoint, 'not aboriginals of Africa'.73 The demographic and cultural heterogeneity of colonial circumstances
THE 'NATIVE' UNDEFINED

65 PRO CO 822/36/16, fols. 43, 44. 64 PRO CO 822/36/16, fol. 43. 66 PRO CO 822/36/16, fol. 44. 67 PRO CO 822/36/16, fol. 45. In Southern Rhodesia's case, government-supported

schools were first established

68 Ibid.
70 PRO CO 822/36/16, 72 PRO CO 822/36/16,

in 1916. By 1927 there were six in total, with 469 students. 69 PRO CO 822/36/16, fol. 46. fols. 2-10. 71 PRO CO 822/36/16, fol. Ib, 55. fol. ib, 56. fol. ib, 57. 73 PRO CO 822/36/16,

LEE CHRISTOPHER JOON-HAI 468 therefore confounded any easy generalizations in determining the content of the terms 'native' and 'non-native'. It was subsequently recommended that status be decided by local colonial courts through an application process, rather than legislating for 'a separate class'. Such protocol already existed in New Zealand in cases of 'half-caste Maori', and it was understood to exist in the United States with Native Americans. Court determination would primarily be through a lifestyle Additionally, the involvement of the Conference of East African measure."74 Governors was deemed necessary for consensus, though a sense of trepidation was expressed with this deferral at the end of the Colonial Office meeting. One official quipped half-heartedly, 'I am afraid that it may be regarded in some quarters as the thin end of the wedge, and even as opening a serious door, - that of the railway dining car'.75 The Colonial Office consequently responded to the Nyasaland administration in April 1931 along with a separate notice to members of the Conference of East African Governors regarding the matter of definition.76 'The status of native half-castes is ... a question which raises more than local issues', the letter stated, and 'it is desirable that the whole question should be considered in relation to East Africa generally before it assumes a more serious and urgent character'.77 The letter emphasized the inclination that the legal status of 'half-castes' should depend primarily upon a cultural standard and that 'no obstacle should be placed in the way of native halfcastes being classed among members of a higher civilisation where their standard and manner of life justifies such classification'.7" The main question was whether this consideration should be legalized universally. With the Haythorne-Reed ruling, the current situation was that 'native half-castes' were 'non-natives' regardless of consideration for lifestyle.79 The Colonial Office was not prepared to accept this position without general discussion.80 Consonant with discussions in London, existing laws served as models of what difficulties might be encountered and possible resolutions. The definition of 'native' under the Arms and Ammunition Ordinance No. 2 of 1891 from Southern Rhodesia included 'Any person being or having been a descendent of any aboriginal native of Africa'. As discussed previously, this effectively excluded anyone of 'mixed-race' background from 'non-native' status. A second definition from Northern Rhodesia, in the Interpretation Ordinance No. 55 of 1929, included a cultural component outlined as 'living among and after the manner of any such tribe or race'. The perceived problem in this case again concerned the case of Swahili and other social groups seen as 'native' legally, but 'non-native' culturally. A third possibility was to define 'native' as 'Any person who is or whose father or mother was an aboriginal native of Africa'. This position slightly differed from

7 PRO CO 822/36/I6, fol. Ib, 57, 58. For the New Zealand case, see PRO CO 822/36/ 16, fol. I a, 76, 77. West African colonies were considered as well, though persons of mixed descent were not an issue. See PRO CO 822/36/i6, fol. ib, 59.
75 PRO CO 822/36/16,

77 MNA si/705I/30,

78 Ibid. There is particular mention with regards to children: 'In particular, no obstacle should be raised to children, legitimate or illegitimate, of European or Indian fathers and native mothers being treated in accordance with the status of their fathers where they have been brought up in a manner suited to that status'. 79 Ibid. 80 Ibid.

76 MNA si/7o5I/30, fol. I I, 22 Apr. fol. Ib, Ii. fol. Iza, 20 Apr. I93I; fol. iia, 20 Apr. i93i.

193I.

THE

'NATIVE'

UNDEFINED

469

Southern Rhodesia's 'one-drop' rule by limiting consideration to firstgeneration 'mixed-race' persons only. This option was still seen as too exclusionary by some, however, given its universal barring of all firstgeneration persons from any claim to 'non-native' status.81 A persistent tension therefore existed between race and culture, with the latter providing a subterfuge for the former. In the conclusion to this letter, Lord Passfield stressed his desire that the governments of East Africa consider a protocol that would make status depend primarily on a cultural standard.82 However, this position constructed a central contradiction as to how 'Westernized' Africans were to be treated. Given the emphasis placed on 'mode of life', the implications of legal status on mission-educated Africans, for example, was unclear. A fundamental ambiguity therefore appeared between privileging race or culture in determining 'native' or 'non-native' status.83 This tension persisted in subsequent correspondence. A letter from the Nyasaland Attorney General to the Colonial Secretary in August 1931 further outlined the potential legislative complexities that existed. Citing frustration that 'it can truthfully be said that no one has satisfactorily solved the problem', he explained that this problem over definition had not existed previously since 'all half-castes were living as natives and wished to be treated as natives' and that the new intervention was due to 'a few better educated half-castes, who are protesting against being classified as natives'. Definitions from other colonies were unhelpful, with inconsistencies from differing conditions in each colony. He consequently argued, in contrast to the government's previous position that The vast majority of half-castes in Nyasaland live in exactly the same manner as natives and would be completely lost and unhappy if by stroke of a pen, they were debarred from taking their place in the political life of a native village and I very much doubt whether a village Headman would permit a half-caste to remain in his village if he were considered by law to be outside his jurisdiction.84 Supporting the position of Northern Rhodesia, he considered this approach better for Nyasaland than creating an entirely different class as originally suggested, since this would necessitate an overhaul of existing ordinances and laws.85 Correspondence between Northern Rhodesia and the Conference of East African Governors provides further insight into this line of official thinking. A letter from the Chief Secretary's Office in Livingstone to the Conference in Nairobi in August 1931 argued for emphasis on lifestyle over origin: the classification is not between native and European but between native and nonnative, and that the test in a doubtful case is the mode of living of the individual affected ... the important issue is to prevent the establishment of a class neither

82 Ibid. 81 Ibid. 83 MNA sI/7o5I/30o, fol. 12, 21 May 1931. 84 MNA sI/705I/30, fol. 15, I Aug. 1931, I.
85 Ibid. K. L. Hall, the Chief Secretary,summarized this position in a letter to the Conference of East African Governors, dated 18 Aug. 1931, again reiterating that 'it

to legislateseparately wouldbe unwiseto endeavour for half-castes,the majority of whom

are living under native conditions'. See MNA sI/705I/30, fol. i6, I8 Aug. I93I, 1-3.

470

CHRISTOPHER

JOON-HAI

LEE

European nor Indian on the one side, nor African on the other, which might separate itself from both, be despised by the one and despise the other.86 Significantly, this perspective, like that of Nyasaland's Attorney General, took African opinions into consideration, arguing that separate legislation could antagonize African authorities and communities. This consideration was particularly important given the backdrop of transition to indirect rule throughout the region, prompting a debate that needed to consider the balance of power between the state and African authorities. Diversity of opinion was further sustained in correspondence from other East African colonies. Officials in Zanzibar wrote that 'Euro-Africans' and 'Indo-Africans' were small in number though 'Arab-Africans' were large in number and considered 'non-Africans'.87 To change this status quo through the creation of a separate class would be 'politically undesirable'.88 Ugandan officials said the issue was not pressing there and that 'mixed-race' persons were 'content to accept the status of natives ... since the advantages which, as natives, they enjoy in such matters as the holding of land and the provision of education are likely to outweigh in the minds of the majority any benefits they might derive from their being regarded as non-natives'.89 Regarding the proposal for definition based on culture, the Ugandan administration also remarked, in reference to the present level of African education, that there already existed 'an increasing number of natives whose standard of living is in every way superior to that of a large number of nonnatives'.90 Instead, it was suggested, quite bluntly, that 'a bastard, in law, is a "stranger in blood" to his father' and, citing Nigerian policy, that a 'native' is 'any person whose parents were members of any tribe or tribes'.91 In contrast, the Kenyan administration argued for 'a formula which makes the legal status of native half-castes depend primarily upon the standard and mode of their life'.92 With competing opinions, a final summary report from the Office of the Conference of East African Governors issued in January 1932 stated that no general consensus existed for the Secretary of State's position that status be based on culture.93 The report further suggested that agreement was unlikely to be reached through correspondence alone and that the question should be raised instead at the forthcoming conference of law officers.94 Officials in Nyasaland agreed.9" The Conference of Law Officers held in 1933 resulted in a published report on the 'Status of half castes'.9" This report decided that the so-called Tanganyika Bill would serve as a model, since it 'covers the proposals
86 MNA sI/705I/30, fol. I7d, 27 Aug. 1931. See also MNA sI/705I/3o, fol. I7h, 8 July 1931. Uganda would also agree with this position. See MNA si/7o5I/3o, fol. 21,
a separate class, 87 MNA sI/7o05/30, 8s Ibid. see MNA

Annexure IIIa, io Mar. 1933, 45. With regards to separate education and how it might
create

fol. i7c, io Sept. 1931; PRO CO 822/36/16,

si/705'/30,

fol. 17g.

fol. 26, 10oSept. 1931.

89 MNA sI/7o05I/30, fol. I7b, 9 July 1931; PRO CO 822/36/16, fol. 25, 9 July 1931. 91 Ibid. 90 Ibid. 92 MNA sI/705I/30, fol. I7a, 8 Jan. 1932; PRO CO 822/36/16, fol. 24, 8 Jan. 1932.
93 MNA 95 MNA si/705I/30, sI/705I/30, fol. 17, 12 Jan. 1932, fol. 18, 6 Feb. 1932. I. 96 MNA 94 Ibid. sI/705I/30, fol. 21.

THE'NATIVE'

UNDEFINED

471

memoranda on the severally advanced by the Governments contributing and at the same time avoids word inherent subject inferiority of any implying social status'." Furthermore, it met the original wishes of the Colonial Office.98 The Tanganyika Bill provided this summary: All racial discrimination in law is objectionable in principle although in certain exceptional cases it can be justified. The Tanganyika Government, therefore, endeavours, as far as possible, to avoid any such discrimination. It recognizes, however, that for certain purposes African natives must be described in the law; and that the expression 'African' might be construed to include French citizens in Algeria, Egyptians, South Africans, and others, with inconvenient consequences. It therefore proposes to introduce consolidating legislation defining natives in a descriptive manner, in order that as a matter of convenience the expression 'native' may be used in the same way as the expressions European, Indian, American, etc. No different legal status is intended, but only the adoption of a convenient term for use when the provisions of any particular enactment are required to be applied to a certain section of the community, generally described as 'the natives'.99 Based on this carefully phrased prerogative, the bill outlined how a person could apply for 'non-native' status by meeting three basic conditions. These were: (a) that he is partly of non-native descent. This is a definite condition not within the power of the individual to change in any way; (b) that he is not occupying land in accordance with native tenure or customary law; and (c) that he is not living among the members of any African tribe or community in accordance with their customary mode of life.100 Debate still continued however and 'customary mode of life': over the expressions 'after the manner of'

a well-to-do Muganda might live in a brick house, use tables and chairs, drive about in a car, wear European clothes, etc., and this might be called 'the manner of' at least considerable numbers of Baganda; but it could certainly not be called 'in accordance with the customary mode of life' of the Baganda generally.101 Lifestyle as a strict standard therefore retained transparent problems, with the variegated effects of the 'civilizing' mission still posing potential contradictions. To avoid further deliberation and unwanted political implistatus did not cations, the bill made note that the distinction of 'non-native' make it an exemption law per se: 'Exemption laws involved the acceptance of a principle which this Government does not accept, that is the principle of a superior non-native legal status and an inferior native status'.102 Colonial administrations consequently faced a task of defining difference in principle without dispensing a transparent sense of legal and racial hierarchy at the same time. The final version of the bill, which was entitled 'The Interpretation of "Native") Ordinance, 1933' contained the following with (Definition regards to how to define 'native' status: 'Native' means any person who is a member of or any one of whose parents is or was a member of an indigenous African tribe or community, in which term are
97 MNA sI/705I/30, fols. 21, 29, 30. 98 Ibid. ioo Ibid. iOi Ibid.

99 MNA si/705I/30,

fol. zI, Annexure vIII, 53, 54-

102 Ibid.

472

CHRISTOPHER

JOON-HAI

LEE

included the people known as the Swahili; but the expression aforesaid shall not include - an Arab, a Somali, a Baluchi born in Africa, a Madagascan or a Comoro Islander, or any person who, of his own motion, proves to the satisfaction of the magistrate of a subordinate court of the first class - that he is partly of non-native descent, and that he is not occupying land in accordance with native tenure or customary law, and that he is not living among the members of any African tribe or community in accordance with their customary mode of life.103 Explicit in this definition is that the term 'native' was not defined by race, culture or geographic origin alone, but by a combination of all three. A bundle of determining factors existed, including a person's specific cultural and implicitly racial - background, the issue of land use, social circles and lifestyle. These clustered factors reflected local issues of land use and legal jurisdiction - as with the status of resident colonial foreigners - as much as they evinced a broader subtext of racial and cultural difference. Culture appeared concretely as the deciding factor, with no explicit mention of racial descent. The expressive use of 'customary mode of life' implied that status again depended upon one's proximity to Western cultural norms. Of importance to persons of 'mixed-race' background were the words 'any one of whose parents is or was a member of an indigenous African tribe or community'. With this wording, anyone of African origin was automatically 'native' in status. Only by meeting the qualifications described previously and by going through a formal court application process and receiving a certificate declaring the applicant's descent could one's status shift to 'nonnative'.104 Focusing specifically on the condition of persons of 'partly nonnative descent', Clause 5 of the bill re-emphasized this process, stating: 'Every person partly of non-native descent to whom a certificate under this Ordinance has been granted, shall be deemed, for all purposes, to be of the race of his non-native parent'.15Y The application itself, provided in sample format, was a one-page form of declaration. In addition to meeting qualifications of descent, land tenure and mode of life, the applicant also needed to submit occupation, parents' names and their 'descriptions', as well as a photograph.106 These recommendations by the Conference of Law Officers were provisional, and reservations were soon expressed about the proposed plan. The Kenyan government held the view that Clause 5 could give rise to 'considerable difficulties' involving 'the acquisition by persons only partly of non-native descent of land in the Highlands'.'17 Kenyan officials were clearly concerned how this situation would affect measures to safeguard land for white settlers.1'8 In the case of Nyasaland, Kenya's concerns would not apply since land tenure restrictions were different, though consultation was advised with Northern and Southern Rhodesia about Clause 5.109 Officials felt, given the nature of discussion, that any quick decision should be avoided, particularly since Nyasaland's political future might be outside East
103

MNA SI/420/33, fol. 2, 'A Bill to Amend and Define in More Precise Terms the

Definition of the Expression "Native"', Clause 2. Included in MNA SI/420/33, fol. I, 8 Dec. 1933. 104 MNA S I/420/33, fol. 2, Clause 3. 106 MNA SI/420/33, fol. fol. 3, Clause 105 MNA SI/420/33, 55fol. 9, I Mar. 107 MNA SI/420/33, fol. I, 8 Dec. 1933. 108 MNA SI/420/33, 1934. '09 MNA SI/420/33, fol. 8, 12 Feb. 1934; MNA SI/420/33, fol. 9, I Mar. 1934.

THE

'NATIVE'

UNDEFINED

473

Africa."noConsideration also naturally existed over the number of AngloAfricans and therefore the degree to which this issue was to be extended. A
1934 census totaled the community at

ranging in age from under five years to marriageable age.l Despite this small number that effectively ruled out legislating for 'a separate class', the AngloAfrican Association continued to place pressure on the government for jobs, separate education and other social welfare measures. From a regional standpoint, it soon became apparent that the temporary
consensus on definition in 1933 would not hold. In April 1934 a Nairobi

I202,

654 males and 548 females,

official wrote 'it was realised that each Colony had its own peculiar difficulties' and that 'the Ordinances which would be eventually passed in the various Colonies must of necessity differ'.112 Kenya had not passed the Interpretation Bill of 1933 since officials felt that the status of Arabs and Somalis should receive priority, separate from the 'half-caste' question.113 This local concern, as with Nyasaland, reflected the difficulty in reaching decisive resolution for East Africa as a whole and that rather than a general policy, 'a bill on the general lines of the Tanganyika Bill adapted to each Colony appeared to offer the best hope of a solution'.114 Correspondence extending into late 1935 between Nyasaland and Northern and Southern Rhodesia indicate uncertainty and an increasingly lethargic attitude.115 In December 1935, Northern Rhodesia indicated that no decision had been reached within its administration.116 During the same month, Southern Rhodesia relayed a definition incorporating race and culture that had been discussed there and was to be addressed further in the next session of the Rhodesian parliament."'7 Sentiments expressed in Nyasaland were that there was no reason why the decision of Carr v. Karim should not be followed.11s Deliberation existed, however, with the Senior Provincial Commissioner for the Southern Province, where much of the Anglo-African community lived, still preferring 'to enact a definition of "native" and so determine the status of half-castes' permanently.119 By January 1938 the Nyasaland administration attempted to resolve the existing impasse by asking the Conference of East African Governors if any further actions had been taken legislating the definition of 'native'.120 In reply, reference was made to Kenya Government Ordinance No. LVof 1934, entitled 'The Interpretation (Definition of "Native") Ordinance, 1934'.121 Despite earlier concerns, this bill was similar to the 1933 draft.122A second
110 MNA SI/420/33, fol. 12, 26 Mar. 1934.

111MNA 112MNA 115 MNA 117MNA 18 MNA 19 MNA 120MNA

121 MNA

SI/420/33, SI/420/33, SI/420/33, SI/42o/33, SI/420/33, SI/420/33, SI/420/33,

no folio number given. 113Ibid. 114 Ibid. fol. 17, 30 Apr. 1934. 116 MNA fols. 19 to 25. SI/420/33, fol. 28, 2 Dec. fol. 26, 3 Dec. 1935. 1935. fol. 31, 21 Oct. 1937. fol. 32, 25 Oct. 1937. fol. 34, 12 Jan. 1938.

SI/420/33, fol. 35, I7 Jan. 1938. 122 MNA SI/420/33, fols. 38 to 41. Consideration was apparent on the part of

Nyasaland officials as to how an act similar to Kenya's would affect legal procedures within their jurisdiction. Hand-written at the end of the Kenya definition pamphlet was a list of Nyasaland ordinances that provided a working definition of 'native' and therefore could be affected. The specific ordinances listed include: Interpretation and General

474

CHRISTOPHER

JOON-HAI

LEE

letter from the Conference of East African Governors in February 1938 indicated that no action had yet been taken by Tanganyika, Northern Rhodesia, Zanzibar or Uganda.123 With this failed consensus and with definitions of 'native' in existing ordinances, the ending memos of this government file, dating from March 1938, indicate that no further action was
taken.124

CONCLUSION

In 1933 a system of indirect rule was formally established in Nyasaland through the implementation of Native Authority and Native Courts Ordinances. This action completed a gradual process that began in 1912. Concurrent with these ordinances was a new land bill in 1933 vesting increased authority in the governor as trustee over land in the protectorate. This move consequently undermined further the control settlers had over land.125A shift therefore took hold from orienting Nyasaland around settler agriculturalproduction to adaptingthe economy aroundAfrican production, from addressing 'non-native' interests to 'native' interests. However, this economic reorientation and administrative restructuring was not without complication. 'Native' associations- advocacy groups whose membership consisted of a mission-educated African elite - played a significant role in shaping the outcome of these developments, presenting a pressure and challenge to political change and these categorical distinctions. The parallel persistence of the Anglo-African Association would also complicate this process of re-institutionalizing the customary law and authority through their ongoing demands for status throughout the 1930s. Against this backdrop, the category of 'native' therefore continued to be an important distinction, despite its inconclusive premise, when situations of power and authority insisted upon it.126 The definition of 'native' continued to be challenged in official thinking as well. In an essay published in 1948 entitled 'The administration of African customary law', Ronald E. Robinson responded that the answer to the basic question of who was accountableto native courts 'should obviously be, natives'.127 However, he immediately noted 'this is generally true,
Clauses, No. 12 of 191 I; Immigration Restriction Order No. 17 of 1922; Police Order No. 5 of 1924; Prison Order No. 9 of 1924; Tobacco Order No. 5 of 1926; Credit Trade No. I5 of 1926; Native HutPollTaxOrder No. 21 of 1926; withNatives Order Asylums OrdinanceNo. 18 of 1928; CriminalProcedureCode No. 23 of 1929; and (handwritten)

of 'Non-Native' in Non-Native PollTaxOrder No. 4. Definition

123

MNA SI/420/33,

fol. 42, 9 Feb. 1938; MNA SI/420/33,

fol. 43, 9 Feb. 1938.

124 MNA SI/420/33, fol. 44. 125 L. P. Mair, Native Policies in Africa (London,

when settler interests again took hold. Ann Stoler has separately noted the 'problem' of
metis and the failure of legislating for separate status in the French colonies. See Ann Laura Stoler, 'Sexual affronts and racial frontiers: European identities and the cultural politics of exclusion in colonial Southeast Asia', Comparative Studies in Society and History, 34 (1992), 532. Republished as chapter 4 in Stoler, Carnal Knowledge. 127 R. E. Robinson, 'The administration of African customary law', Journal of African Administration, I (i949), I159.

1936), III, II2. 126 The Central African Federation of the postwar period constituted another reversal

THE'NATIVE'

UNDEFINED

475

but definitions of the term vary somewhat from territory to territory'.128 He reiterated the two principles of racial descent and culture for determining status. He also stated that the mode of life test applied only in cases pertaining to 'persons of mixed blood'.129 A separate essay on customary law published in 1950 again raised the definition of the term 'native' with the comment, 'This is the subject of a good deal of uncertainty, and definitions vary'.130 Principles of racial descent and lifestyle were again mentioned as reference points. In South Africa the three 'tests' were '(a) appearance; (b) parentage (or preponderance of blood); and (c) habits of life, and associations of the subject'.131 The issue of parentage was primary, the others 'being only corroborative, or helpful when the antecedents of the subject are uncertain'.132 A firm, universal definition therefore had yet to be reached in the post-Second World War period, leaving contradictions that would eventually be capitalized upon by anti-colonial activists. The conclusion to be drawn from this genealogy, then, is that defining the term 'native' - an ostensibly self-evident and obvious task, and an important one upon which many relationships of power were predicated - was difficult in practice. When called upon to arrive at a conclusive and universally applicable definition, colonial administrators found it presented problems of conceptualization and consensus. Categories of 'native' and 'non-native' conflicted with competing, and periodically incompatible, understandings of race, culture and origin. Though 'mode of life' was perceived as a solution to circumventing a transparently racial agenda, this position raised larger questions of contradiction regarding how Western-acculturated Africans should be defined, a conceptual slippage that evinced the static nature of the Dual Mandate system and the equally fixed nature of the identities that extended from it. Origin was seen as a last recourse from the point of view of the Nyasaland administration and the Haythorne-Reed ruling, though this constituted a return to the original question and problem. The colonial kinship connections of Anglo-Africans to African, European and Indian communities complicated this basic colonial taxonomy. Indeed, the term 'kinship' is emphasized here, suggesting the relative permanence of such connections and the sets of politics embedded within them, rather than momentary acts of racial transgression, as discussed in other studies, that exist ephemerally in the historical record.133Achieving legibility on this basis was not a simple task. James Clifford has addressed a similar situation of legibility and identity through a court case in The Predicament of Culture. His final chapter,
129 Ibid. A. N. Allott, 'The extent of the operation of Native customary law, applicability and repugnancy', Journal of African Administration, 2 (i950), 5128 Ibid.
130

131

Ibid. 6.

132

Ibid.

133 The title of this article is in part a nod to J. van Velsen's classic study, The Politics of Kinship: A Study in Social Manipulation among the Lakeside Tonga of Malawi (Manchester, I97I). Stoler, among others, tends to focus on moments of transgression over the actual lives of the people resulting from such action. Her earlier study on Foucault explains this emphasis, see Ann Laura Stoler, Race and the Education of Desire: Foucault's History of Sexuality and the Colonial Order of Things (Durham NC, I995). See also Philippa Levine, Prostitution, Race and Politics: Policing Venereal Disease in the British Empire (New York, 2003).

476

CHRISTOPHER

JOON-HAI

LEE

'Identity in Mashpee', discusses a 1977 legal dispute involving the Mashpee Native American community in Massachusetts that became 'a borderline case' of identity where 'powerful ways of looking ... became inescapably problematic'.134 Clifford writes of how 'The trial was less a search for the facts of Mashpee Indian culture and history than it was an experiment in translation, part of a long historical conflict and negotiation of "Indian" and "American" identities'. Though the context of this case is different from the one in this essay, the two situations are similar insofar as they both illustrate the difficulty of definition and the consequent levels of contestation that can occur: from the legal, to the social, to the political, to the interpersonal. State vision in both cases was based on normative categories of identity; in both cases lived experience provided a different mirror. In this sense, state optics can be described as codified and thus limited in specific ways. Identifying these limits - rather than uncritically reproducing them - is a necessary task. Protocol demanded that Nyasaland seek recourse to the Colonial Office, other East African colonies and the abstract structure of the Dual Mandate system for a resolution to its predicament. This strategy failed to solve this situation conclusively, however. The structural characteristics of the indirect rule system were a source of both strength - through uniformity, stability and efficiency - but also weakness, as demonstrated through the ambiguity and uncertainty of how to handle local contingencies. The implications of this case therefore provoke critical thinking about analytic categories that scholars have used, which consciously or unconsciously - have, at times, been inherited extensions of such characteristics. Recently proposed categories of 'citizen'/' subject' and 'native'/' settler' are not only complicated by the existence of persons and communities of 'mixed-race' background - whose kinship and genealogies cut through such distinctions - but also mark an inherited discourse of interpretation.135 Mahmood Mamdani's stated aim of an African unit of analysis, if at one level commendable, betrays empirical limitations and a conceptual ambiguity through its very reliance on a generic model of colonial rule: one European in origin and perspective, but also premised on such ill-defined terms as 'native' and 'non-native'.136 Indeed, the employment of indirect rule as a universal interpretive framework appears as a revalorization of a colonial perspective and reproduces a working knowledge of states and societies in Africa that has been the object of criticism for some time. Better historicizing postcolonial conditions in Africa, understanding the legacies of colonial institutions and breaking the 'exceptionalism' of South Africa are important
134 His emphasis. James Clifford, The Predicament of Culture: Twentieth-Century Ethnography, Literature, and Art (Cambridge, 1988), 289. 135 Mamdani, Citizen and Subject; Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda (Princeton, zool). 136 A standard critique of his work has been through the privileging of local contingencies over his universally applied model. With regards to origins, Mamdani's understandings of bifurcation and despotism also owe a considerable debt to Hannah Arendt, uncredited within his I996 text. See Hannah Arendt, The Origins of Totalitarianism (New York, 1973), ch. 7, 'Race and bureaucracy'.

THE'NATIVE'

UNDEFINED

477

tasks.1"'A conceptual recourse to such philosophies of rule, however, results in a reproduction of colonial knowledge, the redeployment of an inherited discourse of interpretation, leaving internal tensions, as examined here, unaddressed.138 Earlier categorical distinctions such as 'colonizer'/' colonized' -that also stem from the 'native'/'non-native' binary and bear a certain pressure on Mamdani's work - must also be considered in a sharper historical light. Seminal work by Fanon and Albert Memmi that outlined such categories were born during times of revolution, times of social crisis when such distinctions resemble what Louis Althusser has referred to elsewhere as 'determination in the last instance'."'139 Though this body of anti-colonial knowledge is counter-posed to that used by Mamdani, a common ground is shared that is more abstract than attendant to variegated nuances of change over time. Indeed, it is significant to observe that Mamdani's work is also situated in contexts of crisis and violence: apartheid South Africa and the Rwandan genocide of 1994. While such categories may never be completely discarded, ongoing attention should be paid to their historical origin, their interpretive limitations and the ways in which such categories were challenged by intrinsic tensions, as well as on an everyday basis. The world that the Anglo-African community of Nyasaland inhabited was defined in part by these terms, but never completely.140 Recent scholarship has demonstrated how Africans were imagined as particular subjects - patients, consumers and workers - outside of contexts of direct conflict.141 This essay seeks to contribute to this body of literature by offering a case study demonstrating the inherent difficulties and contradictions in such processes of colonial discourse and subject making as posed by the contingent voices and actions of local actors. The minor court case of Carr v. Karim opened a broader discussion about one of the most fundamental terms in the colonial lexicon, a debate that was ultimately inconclusive. The Anglo-African community of Nyasaland

137This 'exceptionalism', touched upon earlier by Leonard Thompson in the first edition of the Oxford History of South Africa (1969), must also be better itemized: 'political exceptionalism' appears weakened, but 'economic exceptionalism' remains. 138 A sharper distinction must be drawn between pointing to the tactile legacies of colonial institutions and using abstract philosophies of rule for interpretation. My thoughts here on discourse, intellectual genealogy and the problems of perspective draw from the vast literature of postcolonial theory, an obvious example being Edward Said,
Orientalism (New York, 1978).
139 Louis Althusser, 'Ideology and ideological state apparatuses', in Lenin and Philosophy and Other Essays (London, 1971), 129. 140 Mamdani himself has also proposed the need to move beyond 'settler' and 'native' categories but locates this possibility only to the postcolonial period. See Mahmood Mamdani, 'Beyond settler and native as political identities: overcoming the political legacy of colonialism', Comparative Studies in Society and History, 43 (200oo1), 651-64. 141 Megan Vaughan, Curing their Ills: Colonial Power and African Illness (Stanford, 1991); Timothy Burke, Lifebuoy Men, Lux Women: Commodification,Consumption,and Cleanliness in Modern Zimbabwe (Durham NC, I996); Cooper, Decolonization and African Society; Diana Wylie, Starving on a Full Stomach: Hunger and the Triumph of Cultural Racism in Modern South Africa (Charlottesville, zool ).

CHRISTOPHER LEE JOON-HAI 478 would continue to blur such categorical distinctions as a strategy of empowerment, as did similar communities elsewhere, through their colonial kinships. This episode therefore provides an important example of how colonial conditions at times confounded and ultimately shaped ideas in the

metropole.142

142 For this agenda,see Ann LauraStoler and Frederick Cooper,'Between metropole and colony: rethinkinga researchagenda', in FrederickCooper and Ann LauraStoler in a Bourgeois World(Berkeley,I997), 1-56. (eds.), Tensions of Empire:ColonialCultures