christopher joon-hai lee - the 'native' undefined colonial categories, anglo-african status and the...

7/22/2019 Christopher Joon-Hai Lee - The 'Native' Undefined Colonial Categories, Anglo-African Status and the Politics of Kins

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The 'Native' Undefined: Colonial Categories, Anglo-African Status and the Politics of Kinshipin British Central Africa, 1929-38Author(s): Christopher Joon-Hai LeeReviewed work(s):Source: The Journal of African History, Vol. 46, No. 3 (2005), pp. 455-478Published by: Cambridge University PressStable URL: http://www.jstor.org/stable/4100640.

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Journal of African History, 46 (2005), pp. 455-78. ? 2005 Cambridge University Press 455doi:Io.IoI7/Sooz1853705ooo86I Printed in the United KingdomTHE'NATIVE' UNDEFINED: COLONIAL

CATEGORIES, ANGLO-AFRICAN STATUSAND THE POLITICS OF KINSHIP IN BRITISHCENTRAL AFRICA, 1929-38

BY CHRISTOPHER JOON-HAI LEEUniversity of North Carolina, Chapel Hill

ABSTRACT: This article examines the categorical problem that persons of 'mixed-race' background presented to British administrations in eastern, central andsouthern Africa during the late 1920O and 1930s. Tracing a discussion regardingthe terms 'native' and 'non-native' from an obscure court case in Nyasaland(contemporary Malawi) in 1929, to the Colonial Office in London, to colonialgovernments in eastern, central and southern Africa, this article demonstrates alack of consensus on how the term 'native' was to be defined, despite its ubiquitoususe. This complication arrived at a particularly crucial period when indirect rulewas being implemented throughout the continent. Debate centered largely aroundthe issue of racial descent versus culture as the determining factor. The ultimatefailure of British officials to arrive at a clear definition of the term 'native', one ofthe most fundamental terms in the colonial lexicon, is consequently suggestive ofboth the potential weaknesses of colonial state formation and the abstraction ofcolonial policy vis-ai-vis local empirical conditions. Furthermore, this case studycompels a rethinking of contemporary categories of analysis and their historicalorigins.KEY WORDS: Malawi, colonial administration, race.

This is a young country and problems will arise in the near future which will haveto be dealt with, and the more these problems can be foreseen and provided for theless trouble there will be later on ... great care should be expended on the ex-pression 'native of Africa'. This is defined as meaning a person 'born in Africawho is not of European or Asiatic race or origin'. This would mean that those whohave European or Asiatic blood in them, however little, could come under theheading European or Asiatic. Take a Cape boy, for example, is he a native of Africaor is he, if of partial European descent a European, or if of partial Malay descent ishe an Asiatic ? This thorny question is bound to arise in the near future and itwould appear as if this lack of clear definition opens the door to a lot of argument.1ON 28 June 1928, Ernest Carr of Blantyre, Nyasaland, sold a Ford lorry(Registration Number B. T. 646) to Suleman Abdul Karim of the neigh-boring town of Limbe. A written agreement was reached determining thatthe lorry would be paid for as follows - ?3o down, ?20 on 31 July and theremaining ?s5o to be paid in monthly installments of ?io starting 31 August1928.2 All told, the outcome of this unremarkable business transaction was

1 Nyasaland Times, 6 Oct. 1922, 2.2 Malawi National Archive (henceforth MNA) J5/2/73:46, fol. I.


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456 CHRISTOPHER JOON-HAI LEEintended to be resolved expeditiously and, from all foreseeable standpoints,quietly: the Ford would be paid off by the new year of 1929. The minorhistorical 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 asecond one several months later on 16 November, this time for only ?8.Karim defaulted on the remaining payments. Moreover, he failed to make anagreed-upon insurance premium payment of ?io to the African Guaranteeand Indemnity Co. Ltd., for which Carr was the local agent. Despite hisfailure to uphold their agreement, Karim had not returned ownership of thelorry to Carr. Consequently, after several more months of unfulfilled wait-ing, a claim against Karim came before the High Court of Nyasaland on i iApril 1929 in Limbe.3In a move illustrative of the contingencies of history, the adjudication ofthis case decided not only the fate of a Ford truck but also, in part, the fate ofpersons of 'mixed-race' background in colonial Nyasaland. During the trialKarim unexpectedly sought 'non-native' status. In the court ruling handeddown just over a week later on 19 April, presiding Judge Haythorne-Reedwrote the following regarding this course of action:Defendant states that he does not wish to take the defense that he is a native. TheCourt 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 anative of Africa not being of European or Asiatic race or origin; accordingly forthis Ordinance a native means a native of Africa who is not of Europeanor Asiaticrace or origin, and all others are non-natives.4Haythorne-Reed therefore decided in his opinion that the defendant held'non-native' status. To clarify his legal position, he added the followingmore general statement to his ruling:A person's raceor origin does not depend on where he or she is born, just as beingborn in a manger does not make a person a cow, or a child of European parentsbeing 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 theword origin was used, or what sense I can give it additional to the word race.5As a result Karim was a 'half-caste Indian ... of Indian origin'.' Karimadmitted to the debt and asked for time to pay it off. The court agreed withpayment, in addition to court fees, to begin on i May.7This essay is concerned with the relationship between identity and colonialstate power. It is focused specifically on colonial categories of rule - their

3 Ibid. Carrwas a local auctioneerwhofrequently anadvertisementsntheNyasalandTimes during the I92os.4 MNA J5/2/73:46. See also MNA sI/7o05/3o, 19 Apr. 1929, fol. 3. Adding a degree ofmystery 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 insteadwould have been seen at fault. It is uncertain why Karim undertook this position andstrategy. 5 MNA J5/2/73:46. 6 Ibid. 7 Ibid.


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THE'NATIVE' UNDEFINED 457racial basis and euphemistic corollaries - and the ways in which they wereshaped by local conditions. This article is also concerned with con-nections - the contingent ways in which African and European communitieswere tied together - by centering within this discussion the status of personsof 'mixed-race' background, a social group frequently marginalized inAfrica's historiography.8 The court case of Carr v. Karim sparked a series ofunexpected events, the full dimensions of which were unintended by theBritish colonial administration in Nyasaland. Among them were the for-mation of a politically active 'Anglo-African' community that sought staterecognition as well as various social benefits such as civil service jobs andseparate educational facilities.' More broadly, this case opened a discussionthat circulated among colonial officials throughout east, central and southernAfrica regarding the categorical definitions of 'native' and 'non-native'.This discussion developed during a crucial period when indirect rule wasgaining momentum throughout British Africa. 'Mixed-race' individualscomplicated these distinctions through their kinship connections to African,European and Indian communities. The expression 'colonial kinships' isconsequently proposed here as a means of thinking about these sets of con-nections that developed throughout the continent but which have drawnuneven conceptual attention from historians thus far.10This article therefore argues that despite its initially minor surfaceimplications, the impact of this case provides insight into colonial stateformation and state power, specifically the ambiguities, contradictionsand organic, improvisational nature of their existence, in contrast withmore essentialized understandings predicated on a domination-resis-tance paradigm that has influenced many aspects of African historicalscholarship since the i96os.1' Sumit Sarkar, a historian of South Asia, haswritten that "'unimportant" events of no obvious consequence whichstick out and refuse to fit into any of the established patterns of historicalreconstruction' are valuable insofar that they 'afford oblique entry pointsinto social history and can throw light upon dimensions obscured bydominant - all too often teleological - analytical frameworks'."12 This essay

8 My concernfor the theme of connectionsstems in part from FrederickCooper,'Conflict and connection: rethinking colonial African history', American HistoricalReview, 99 (1994), 1516-45-9 'Anglo-African' was a local term for persons of 'mixed-race' background.10 For different examples in this field, see Gavin Lewis, Between the Wireand the Wall:A History of South African 'Coloured' Politics (Claremont, 1987); Owen White, Childrenof the French Empire: Miscegenation and Colonial Society in French West Africa,

1895-196o (Oxford, 2000); George Brooks, Eurafricans in WesternAfrica: Commerce,Social Status, Gender,and Religious Observancerom the z6th to the z8th Century (AthensOH, 2oo3). For a parallel study in Southeast Asia with a marked depth of theoreticalanalysis, see Ann Laura Stoler, Carnal Knowledge and Imperial Power: Race and theIntimate 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); AllenF. Isaacman, The Tradition of Resistance in Mozambique: Anti-Colonial Activity in the

Zambesi Valley, z850-z921 (Berkeley, I976).12 He further describes these contingent events as 'akin, perhaps, to the Freudian slipsof psychoanalysis', thus providing unexpected opportunities for historical analysis. SeeSumit Sarkar, 'The Kalki-Avatar of Bikrampur: a village scandal in early twentieth


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458 CHRISTOPHER JOON-HAI LEEseizes upon this prerogative, exploring the fallout of an event of 'no obviousconsequence' with the direct intention of providing new insight into colonialbureaucratic thinking and the dialectics of identity and state power in col-onial Africa.13

VISUALIZING POWER: COLONIAL STATE FORMATION ANDIDENTITY POLITICS

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

Though Scott's study does not address colonial states, the transference ofthis term and concept can easily be made to the context of Africa."6Indeed,existing discussions of ethnicity and colonial state rule have implicitly em-braced such an idea.1 This was particularly the case during the interwar

century Bengal', in Ranajit Guha (ed.), Subaltern Studies VI: Writings on South AsianHistory and Society (Delhi, 1992), 3, 4.13 For a different view of this case, see Ibbo Mandaza, Race, Colour, and Class inSouthernAfrica (Harare, 1997), ch. 6.14 James C. Scott, Seeing Like a State: How Certain Schemes to Improve the HumanCondition Have Failed (New Haven, I998), 2. On resistance, see James C. Scott, Weaponsof 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 bedrawn to Foucault and his studies of surveillance, power and the modern state. SeeMichel 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, Colonising Egypt (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 en-couraged 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 oftradition revisited: the case of colonial Africa', in Terence Ranger and Olufemi Vaughan(eds.), Legitimacy and the State in Twentieth-Century Africa: Essays in Honour ofA. H. M. Kirk-Greene (Houndmills, I993). Other work pertinent to this discussion in-clude 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 andIdentity in East Africa (London, 1993); and Mahmood Mamdani, Citizen and Subject:ContemporaryAfrica and the Legacy of Late Colonialism(Princeton, I1996).


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THE'NATIVE' UNDEFINED 459period when British colonial administrations were devising and implement-ing programs of indirect rule. French and Portuguese administrations simi-larly 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 ofsuch policies into the post-Second World War period, as bureaucraticrationalization in South Africa, for example, viewed principles of ethnicclarity as not merely cost effective or a technique of divide-and-rule, but as afully modern, social-scientific means of efficient state governance.19However, as suggested within many of these studies, the actual process ofidentifying ethnic groups and customary authorities to incorporate into statestructures was frequently complex, with improvisation and inventioncharacteristic. Local leaders and communities played active roles in themaking and unmaking of these social orders.20 The linkage between statepower and 'legibility', then, was not simple in colonial Africa, since statepower 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 institutionsand state power.21 This problematic, if persistent, perspective on the modernstate is a realm that has drawn critical attention among a number of con-temporary scholars of colonialism over the past fifteen years. Reflecting uponconventional methodology in her field, Ann Laura Stoler - an anthropologistof Southeast Asia - has argued influentially that the 'anthropology of col-onialism' has been a 'selective project', one that has largely focused on thecolonized.22 Though such attention has been important for articulating localhistory and agency vis-a-vis narratives of colonial domination, the prevalenceof such a position has created a conceptual blind spot: scholars must bettercomplicate understanding of states and power in colonial settings. The term'colonialism' itself has often taken the form of 'an abstract force, as a struc-ture imposed on local practice', with colonial discourse consisting of 'a

18 On the French case, see, for example, G. Wesley Johnson, The Emergenceof BlackPolitics in Senegal: The Struggle for Power in the Four Communes,1900-1920 (Stanford,1971); Alice L. Conklin, A Mission to Civilize: The RepublicanIdea of Empirein Franceand WestAfrica, 1895-i930 (Stanford, 1997). For the Portuguese, see Jeanne Penvenne,'"We are all Portuguese " Challenging the political economy of assimilation: LourenqoMarques, 1870-1933', in Vail (ed.), The Creation of Tribalism,255-88.19 Mamdani, Citizen and Subject; Ivan Evans, Bureaucracy and .Race: NativeAdministration in South Africa (Berkeley, 1997); Clifton C. Crais, The Politics ofEvil: Magic, State Power, and the Political Imagination in South Africa (Cambridge,2002), chs. 2, 3.20 Among many studies, see, forexample,A. E. Afigbo,TheWarrantChiefs:IndirectRulein Southeastern igeria,1891-1929 (London,1972);ShulaMarks,TheAmbiguitiesof Dependencen SouthAfrica: Class,Nationalism,and theState in Twentieth-CenturyNatal (Johannesburg, 986).21 The dynamic or change n Scott'sargument s predicatedprimarilyon 'metis', orlocal, knowledge of subject populations, which complicates the blanket imposition of statepoliciesof developmentandthe like.

22Ann LauraStoler, 'Rethinkingcolonialcategories:European ommunitiesand theboundaries of rule', Comparative Studies in Society and History, 31I(1989), 134, 135. Thisessay has been republished as chapter 2 in Stoler, Carnal Knowledge. I refer to her articlein this essay.


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460 CHRISTOPHER JOON-HAI LEEshared European mentality, the sentiments of a unified, conquering elite'.23Such analyses essentialize power by placing various persons, ideologies andinstitutions under a single rubric, ignoring their vulnerabilities.24 Theproblematic interchangeability between colonial states and colonialismwrit large - a consequence of domination-resistance paradigms developedby social historians during the I960s and 1970s-therefore needed to beconfronted.

Scholarship in Africa has been suggestive as to where this line of thinkingmay be taken. John Comaroff has argued for a position that recognizes theexistence of 'competing colonialisms' - state, missionary and settler - in onecontext. Unsatisfied with conventional images of colonialism as 'a coherent,monolithic process', he has urged concern for 'the tensions of empire, notmerely its triumphs; with the contradictions of colonialism, not just itscrushing progress'.25 In his study of labor and decolonization in French andBritish colonial Africa, Frederick Cooper casts similar light on colonial pol-itical economy, accounting for structural ambiguities stemming from in-compatibilities between free market mechanisms and political control.26Reviving studies of indirect rule, Mahmood Mamdani has pointed to the'Janus-faced, bifurcated' nature of the British Dual Mandate system thatintegrated 'two forms of power [customary and colonial] under a singlehegemonic authority'.27 These arguments combined have therefore served tocomplicate state institutions, ideologies and colonialism broadly defined.Colonial social orders were not only challenged by forms and expressions ofAfrican agency, but by the very terms and methods upon which Europeancolonial control was based. As such, if 'legibility' is to be retained as a usefulcategory for understanding the practice of colonial state power, it must bebetter situated within this context of competing institutions, ideologies andprocesses.28The historical conditions of Nyasaland fit well into this agenda of com-plicating colonial rule. English and Scottish missionary societies precededthe formal establishment of British rule in 1891, serving to create a Western-educated class of Africans who presented an early challenge to colonial

23 Her emphasis. Ibid. She has further written, 'The terms colonialstate, colonialpolicy,foreign capital, and the white enclave are often used interchangeably, as if they capturedone and the same thing'.24 Ann Laura Stoler, 'Perceptions of protest: defining the dangerous in colonialSumatra', American Ethnologist, I2 (1985), 648.25John L. Comaroff, 'Images of empire, contests of conscience: models of colonialdomination in South Africa', American Ethnologist, 16 (1989), 662.26 Cooper writes 'the inability of colonial regimes to maintain "dominance " amidst theuneven effects of capitalism led them to deploy the "universalistic" conceptions of socialengineering developed in Europe, only to find that their own hopes for such technologiesto work required giving up the beliefs about the uniqueness of Africa on which a sense of"dominance" depended'. Frederick Cooper, Decolonization and African Society: TheLabor Questionin French and British Africa (Cambridge, 1996), io.27 However, his employment of the term 'despotism' in 'decentralized despotism' is attimes too strident. Mamdani, Citizen and Subject, I8.28 Other important studies that have complicated notions of power and states in Africainclude Bruce Berman and John Lonsdale, Unhappy Valley : Conflictin 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).


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THE 'NATIVE' UNDEFINED 461authority, most strikingly through the Chilembwe Uprising of 1915,but most persistently through the growth of native associations during the1920s and 1930s.29 Missions therefore constituted a significant presenceon the colonial landscape apart from state institutions. Added to this scenariowere Europeans who acquired land as early as the i88os.30 As in othercolonies, settlers formed a distinct set of interests that at times conflictedwith state concerns. A sequence of agricultural failures - coffee, cottonand tobacco - between I900 and the I930s added further stress to thisrelationship, posing the question as to whether Nyasaland would becomea settler colony as once anticipated. The gradual coercion of customaryauthorities into the state apparatus - through ordinances in i912 and1924 - and the perceived threat of Christianized Africans as exemplifiedby Chilembwe propelled the formal establishment of indirect rule by 1933through the Native Authority Ordinance and the Native Courts Ordi-nance, another step through which power was both consolidated anddisaggregated.31Overall, Nyasaland fits into this research agenda. What is needed, how-ever, beyond recognition of different sets of state and non-state actors on acommon landscape, is better insight into the organizing principles of suchdiverse conditions, an understanding of the way these disparate elementsworked together to create the picture of colonialism that has persisted for solong. The categorical distinction of 'native' and 'non-native' constituted onefundamental method of ordering colonial society into basic components, alegibility conceptualized through philosophies of rule and implemented

29 For the Chilembwe Uprising, see George Shepperson and Thomas Price,Independent African: John Chilembwe and the Origins, Setting, and Significance of theNyasaland Native Rising of z9z5 (Edinburgh, 1958). For its impact on state formation andindirect 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 earlypressure groups in Malawi', in Eric Stokes and Richard Brown (eds.), The ZambesianPast: Studies in CentralAfrican History (Manchester, 1966), 376-412; Martin Chanock,'The New Men revisited: an essay on the development of political consciousness incolonial Malawi', in Roderick J. Macdonald (ed.), FromNyasaland to Malawi: Studies inColonial History (Nairobi, 1975), 234-53; Roger Tangri, 'Inter-war "Native associ-ations " and the formation of the Nyasaland African Congress', TransafricanJournal ofHistory, I (1971), 84-102.30 Early intervention was in part to encourage British colonial interest againstPortuguese encroachment. See Leroy Vail and Landeg White, 'Tribalism in the politicalhistory of Malawi', in Vail (ed.), The Creation of Tribalism, I66. See also, ClementNg'ong'ola, 'The state, settlers, and indigenes in the evolution of land law and policy incolonial Malawi', InternationalJournal of African Historical Studies, 23 (1990), 28.31 At the local level, the early reliance on appointed headmen was explained on the basisthat local social institutions had been disrupted by slave raiding and the Yao and Ngoniincursions. 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 changeof system more radical than that which actually occurred'. The change between 1912 and1933 'lay rather in the scope of the powers assigned to it, and the purpose to which itsemployment 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 thepersonnel employed in practice'. See Lord Hailey, Native Administration in the BritishAfrican Territories, Part II. Central Africa: Zanzibar, Nyasaland, Northern Rhodesia(London, I950), 27.


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462 CHRISTOPHER JOON-HAI LEEthrough practices of law and everyday social discourse. Yet, as demonstratedhere, consensus failed when firm definitions were needed. This essay is lessinterested, then, in providing a case study of African agency or yet anotherset of historical conditions that confounded colonial policy, and insteadposits 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 followingthe Haythorne-Reed ruling expose tensions and contradictions within statevision and power. This article therefore contributes to this agenda amongscholars of colonialism by utilizing 'legibility' as a baseline, but showing theintrinsic problems of achieving this principle under certain circumstances,thus underscoring the ambiguities and vulnerabilities of state power.

LEGIBILITY IN PRACTICE: THE PROBLEM OF DEFININGTHE TERM 'NATIVE'

On 28 July 1929, the first meeting was held of what was to become the Anglo-African Association of Nyasaland. Present were 19 men. As with manypolitical organizations, a recent event inspired this assembly as well aslonger-standing concerns and grievances. As cited in the meeting minutes,the association was created 'at the suggestion of the Blantyre DistrictCommissioner' who mentioned that due to the Haythorne-Reed ruling 'ourstatus was entirely changed'.32 Thomas Merry, secretary at the meeting, re-marked 'there were also clauses in already existing Ordinances which wouldnow apply to us, and certain of them may prove a hardship to parts of thecommunity and some possibly an advantage and that the only way to over-come this difficulty would be to form an Association and select a capableCommittee and meet the Provincial Commissioner and the DistrictCommissioner'.33 Thus began an association that attempted to define a newcommunity unique to the colonial period.34The 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, Europeanor Indian background. Despite Haythorne-Reed's argument for theimportance of origin, defining the category of 'native' was not an auto-matic task. Beyond specific mention in local laws and ordinances, no generaldefinition or protocol existed. Regardless of what racial or cultural notionsmay have been carried consciously or surreptitiously to Nyasaland, a processof on-the-ground definition took place, illustrating the contingent,improvisational nature of colonial rule. This process of definition was itselfencompassed in a separate file of correspondence and debate entitled'The definition of the expression "native"'.3' The question of definition

32MNA NS I/3/2, fol. I, I. SeealsoMNA sI/7o05/30, fol. i, 31 Mar.1930; fol. Ia, 28July 1929, I. 33 MNA NS 1/3/2, fol. I, I.34Foran extendedexamination f theAnglo-AfricanAssociationandits activities,seeChristopher oon-HaiLee, 'Colonialkinships: he BritishDualMandate,Anglo-Africanstatus,and the politicsof race andethnicity n inter-warNyasaland,1915-1939' (Ph.D.thesis,StanfordUniversity,200oo3).s MNA SI/420/33, the definition of the expression 'native'.


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THE 'NATIVE' UNDEFINED 463eventually took on a regional perspective, with Nyasaland officials seekingthe governing experiences and policies of other British colonies to informtheir thinking. Given its then-inclusion in the East Africa group, officialsthroughout British East Africa were consulted in particular, though officialsin Northern and Southern Rhodesia, South Africa and the Colonial Office inLondon also played vital roles.36The term 'native' was a key organizing principle of colonization in Africaas it had been in India and elsewhere, constituting an idea and representationfor purposes of policy as well as a practical term of everyday use. Though itsubiquity is suggestive of a general understanding and acceptance, it typicallymet local conditions that often multiplied the ways in which the term wasused and held meaning. Nevertheless, it also served as short-hand for gath-ering and organizing the vast social heterogeneity colonial states en-countered. During the interwar period, the issue of 'native policy' drew theattention of a number of commentators from political and academic com-munities alike."37an Smuts, who straddled both worlds as Prime Minister ofSouth Africa and one-time Chancellor of Cambridge University, com-mented that native policy wasfar and away the most important issue which is raised by our European contactwith the African continent and its peoples. The policy or policies which theEuropean peoples are going to pursue towards the natives of Africa will havefar-reachingeffects, not only for Africa, but for the future of the world.38One broad result of such discussion during the 1920osand 1930s was theimplementation of systems of indirect rule in colonies under British control,a move that was cost-efficient and respected ideas of cultural difference thencurrent, while also ensuring continued control over territory.39Though framed in terms of 'tribe' and 'native', these expressions - integralto the language and discourse that constituted such systems - wereeuphemisms for broader understandings of racial difference. However,despite the early and piercing anti-colonial work of such thinkers as FrantzFanon, it is surprising to note how little attention has been granted bycontemporary scholars to this observation, and to the local practices andpathways of racial discourse in Africa.40 Such oversight at times appears asa slippage into the ethnically based perspective that exonerated colonialracism, a methodological decision based on contemporary aspirations for

36 MNA SI/420/33, fol. I.37 Key contributions include Lord F. Lugard, The Dual Mandate in British TropicalAfrica (London, 1923); Lord W. M. Hailey, An African Survey (London, 1938).38 Jan C. Smuts, 'Native policy in Africa', Journal of the Royal African Society, 29(1930), 248.39 For a discussion of the dialogue between race, culture, and state policy, see, forexample, Saul Dubow, Racial Segregation and the Origins of Apartheid in South Africa,I919-1936 (Oxford, 1989).40 Dubow's work is a noted exception. For other attempts at cracking this problem, seeClifton C. Crais, White Supremacy and Black Resistance in Pre-Industrial South Africa:The Making of the Colonial Order in the Eastern Cape, 1770-1865 (Cambridge, 1991);

Jeanne Penvenne, African Workers and Colonial Racism: Mozambican Strategies andStruggles in Lourenfo Marques, 1877-1962 (Portsmouth 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.


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464 CHRISTOPHER JOON-HAI LEEgreater analytic precision, but nevertheless possessing the danger of re-valorizing a particular colonial outlook.41 In settler colonies, even those suchas South Africa where white communities had lived for centuries, the term'native' was applied to a person who was black. Geographic origin and cul-ture, though cited, had less bearing on the term's prosaic definition. Thepoint at which the category of 'native' became complicated occurred whenracial lines were crossed. Because the expression 'native' conjoined race withculture, such complication in principle could happen in one of two ways:through acculturation to European practices - converting to Christianity orreceiving Western education, for example - or through miscegenation. Theformer was undoubtedly more common with French debates over 'assimi-lation' and 'association' exemplifying the potential administrative problemsof such processes of transculturation. However, the latter posed compli-cations that were perhaps even less easy to decide upon, given more directconnections of genealogy and kinship.42 Such connections and their impacton status were of particular concern to members of the Anglo-AfricanAssociation.Minutes from the inaugural meeting of the Association were sent to theNyasaland government for consideration.43 The key issues outlined werelegal and social status:the most important question above all was that of establishing our status ... [W]ehumbly appeal to the Government that when framing any Ordinances concerningour community, especially with regard to our status, to kindly avoid, as far aspossible, the scourge with which we have been initiated, namely, the term, 'HALF-CASTE ).44The 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 des-ignation by something more appreciative' and by establishing 'kindly re-lationship with all sections of the communities of this country' suchtransformation could be achieved." With status as a basis, other subjectsraised included welfare and education for children, taxation, higher em-ployment wages and a census.46Government response at the district level expressed interest and supportfor the Association's formation. 'In my opinion all their requests arereasonable. I believe that the formation of an Anglo-African Society wouldbe useful', wrote one official. 'They might even at some point form partof a Defence Force'. He noted they were 'not popular amongst the nativesfrom whom they keep aloof and circumstances have cut them off fromEuropeans'. They were, however, 'very loyal to the British Government'

41 This point is made with full awareness that ethnic identities had local meaning.However, the complex historical interaction between race and ethnicity has been fleet-ingly addressed by historians.42 For example, apartheid measures against South Africa's 'Coloured' communitywere, in a sense, more transparently racist, given the common language and many culturalpractices 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, 24Apr. I930. 44 MNA si/705I/30, fol. Ia, 28 July 1929, 3; MNA NS 3/3/2, I-8.45 Ibid. 46 Ibid.


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THE 'NATIVE' UNDEFINED 465with an admirable aim 'to raise themselves and prove worthy of the citizen-ship they have inherited'. Such a 'clean, law abiding, respectful community'therefore deserved government attention and legislative consideration as 'aseparate class'. 'We have thus amongst us a community to which we pay verylittle attention', summed the official, 'yet one which would willingly serve usand which is struggling against odds'.47Thus began the relationship between the state and this new organizationand community. The Southern Provincial Commissioner, A. J.Brackenbury, and the District Commissioner for Blantyre, A. G. O.Hodgson, attended a subsequent meeting of the Association on 23 April1930, with their attendance generating a second extensive memorandum.48The administration's response to this report was not simple and markedlyless enthusiastic. A brief handwritten note from the Colonial Secretary to theAttorney General commented: 'I think this is likely to be a very difficultproblem'.49

An initial problem perceived was the question of citizenship. Was a personwith a British father automatically a British citizen?5o The AttorneyGeneral's response on this matter did not find fault with the Haythorne-Reed ruling, though in his mind the issues of racial origin, nationality andcitizenship should be kept separate.Origin and racearewholly distinct matters from Nationality. All persons born in acountry which is under British rule are natural-born British Subjects but the ac-quisition 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 isnot influenced by the fact.51His briefing hinted at the complexities involved when deliberating the con-fluence of such categories. The assertion that these were 'wholly distinctmatters' still left open the question of civil status and the broader compli-cation of categorical transgression posed by 'mixed-race' individuals. ManyAnglo-Africans were born out of wedlock, thus undermining at one level theissue of whether citizenship would automatically be conferred by the father.52Nevertheless, it was concluded that 'most of the aspirations of the half-castecommunity can only be realized by special legislation' and such a course ofaction would need the approval of the Colonial Office and 'probablynecessitate analogous enactments in the adjacent Territories'.53

47MNA sI/7051/30, MinutesSection,No. 5, 24 Apr. 1930.48 This memorandumre-emphasizedissues addressed at the inaugural meeting,specifically hoseof terminology,registration,axes,childwelfare,educationanda cen-sus. An indicationof theirstrongdesire to be seen as separateandloyalwas theirwill-ingness to pay a higher tax. As the memorandum pointed out, 'They observe that atpresent they pay nothing towards the public revenue, not even a hut tax, and that perhapsa Poll Tax of ?i would meet the situation, but they do not want it said that they areinferior to the Indians because the Indians pay a ?2 Poll Tax and that therefore they arenot 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, 2.49MNA sI/7051/30, MinutesSection,No. 6, 30 Apr. 1930. 50Ibid.51MNA s1/7051/30o,MinutesSection,No. 7, 16 May 1930. 52Ibid.53Ibid. It shouldbe notedthat in additionto this correspondence bout what to do,there was further correspondenceabout who initiated this situation, focusing onB. J. FairfaxFrancklin,DistrictCommissioner t Mzimba.See MNA sI/705I/30,fol. 4,


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466 CHRISTOPHER JOON-HAI LEEGovernor Thomas of Nyasaland consequently wrote a confidential letterto Lord Passfield, Secretary of State for the Colonies, in November 1930describing the situation in detail. Referring to the Attorney General's com-ments, Thomas remarked:

children born in lawful wedlock of the union of Europeansand Indians with nativewomen acquire the nationalityof the father, but that under the ruling of the Judgethe illegitimate offspring of such unions are merely non-natives under theProtection of the Crown. It may be said with certainty that practically all thosepersons under discussion were not born in lawful wedlock, and the questiontherefore arises as to their position under the law.54Thomas described Anglo-Africans as 'able to obtain employment' and re-garded as a 'quiet and law-abiding people, as a rule more intelligent than theaverage native'.55 He underscored that 'they are not regarded by the nativesas belonging to the native community'.56Thomas thus depicted a social group that fell between civil and customarylaw, with status and equity in question.57 He regarded a new, separate statusas creating 'a most parlous position' in its effect on existing ordinances.58Despite recommendations from other Nyasaland officials - including theAttorney General, Treasurer and Senior Provincial Commissioner - for suchenactment, Thomas was hesitant, stating: 'However much one may sym-pathise with the plight of these unfortunate people, it cannot gainsaid thatthey are to be found in most, if not all, tropical African Dependencies and, sofar as my information goes, they are everywhere regarded as natives'." Thisuniversal 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 haveprovided a solution for other colonies to follow. The definition of 'native' asit pertained to the South African Native Administration Act of 1927 did notinclude persons of 'mixed-race' background as long as they did not 'live asnatives'.6' For the purposes of pass laws under the Natives Urban Areas Actof I923, 'Coloured' South Africans were not included in this legislation.Under this act, the expression 'Coloured person' was defined as 'any personof mixed European and Native descent and shall include any person be-longing to the class called Cape Malays'.61 Existing tax laws under theNatives Taxation and Development Act of 1925 also excluded any persons ofEuropean descent unless they were living in a manner deemed as 'native'.62Overall, 'Coloured' persons were not 'native' under the law, thus supplyingone 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 July1930; MNA sI/705I/30, fol. 7, 6 Aug. 1930; MNA si/7o05/30, fol. 8, 4 Aug. 1930.54 MNA sI/705I/30, fol. 10, 6 Nov. 1930, I, 2. 55 Ibid.56 Ibid. 57 Ibid. 58 Ibid.59 MNA sI/705I/30, fol. 10, 6 Nov. 1930, I, 2. It should be noted that the Acting ChiefSecretary, agreeing with Thomas, thought they should be placed in the category of

natives. 60 Public Record Office (henceforth PRO) CO 822/36/16, fol. 39.61 PRO CO 822/36/16, fol. 40. 62 PRO CO 822/36/16, fol. 42.63 It was not until the apartheid period that 'Coloured' South Africans would face aseparate institutional and legal structure similar to black, or 'native', South Africans.


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THE 'NATIVE' UNDEFINED 467In Southern Rhodesia, the definition of 'native' as it applied to the NativeUrban Locations Ordinance of 1906 and the Native Pass Ordinance of 1913stipulated that both parents must be African.64 Regarding land tenure, theLand Apportionment Act of 1929 defined 'native' as a person who had 'theblood of such tribes or races' and lived 'after the manner of natives'.65 Taxlaw similarly followed both descent and lifestyle.6" Southern Rhodesiatherefore paralleled developments in South Africa: racial descent coupledwith lifestyle determined status. It is noteworthy that in both SouthernRhodesia and South Africa, separate schools had been established for'Coloured' children.67Supplementing these cases, the High Commission Territory ofBechuanaland held the term 'native' as including, for tax purposes, 'allpersons of mixed race living as members of any native community, tribe,kraal or location'.68 Swaziland also included persons of 'mixed' backgroundin 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 oforigin and cultural practice. The degree of white settlement or, converselystated, the relative size, presence and priority of 'native' communities inshaping administrative matters also appears to have figured into officialthinking. The large size of the Cape 'Coloured' population undoubtedlygenerated deeper concern and thinking on such matters in South Africa incontrast to Swaziland, for example. Nevertheless, given these pre-existingmeasures, questions of uniformity vis-a-vis the category of 'native' and theissue of special legislation continued to form the basis of discussion as itturned to colonies in East Africa.71The Colonial Office held a meeting in London in January 1931 to addressconclusively the issue of definition.71 General agreement existed on thelogic of the Haythorne-Reed ruling regarding the significance of origin,though debate ensued as to the additional role of culture in determiningstatus. A Southern Rhodesia law - the Arms and Ammunitions OrdinanceNo. 2 of 1891 - was cited as an example of a strict descent argument, thoughit was turned down on grounds that it 'followed very closely the Americandefinition whereby it is impossible for anyone who has any aboriginalblood - however little it may be - in his veins to be considered a non-native'.72 A Northern Rhodesian definition that included a culturalcomponent was also considered, though this was seen as inadequate sinceit would not cover groups such as the Swahili who were typically viewed as'native', though from a cultural standpoint, 'not aboriginals of Africa'.73The demographic and cultural heterogeneity of colonial circumstances

64 PRO CO 822/36/16, fol. 43. 65 PRO CO822/36/16, fols. 43, 44.66 PRO CO 822/36/16, fol. 44.67PRO CO 822/36/16, fol. 45. In Southern Rhodesia's case, government-supportedschools were first established in 1916. By 1927 there were six in total, with 469 students.68Ibid. 69 PRO CO 822/36/16, fol. 46.70 PRO CO 822/36/16, fols. 2-10. 71 PRO CO 822/36/16, fol. Ib, 55.

72 PRO CO 822/36/16, fol. ib, 56. 73 PRO CO 822/36/16, fol. ib, 57.


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468 CHRISTOPHER JOON-HAI LEEtherefore confounded any easy generalizations in determining the content ofthe terms 'native' and 'non-native'.It was subsequently recommended that status be decided by local colonialcourts through an application process, rather than legislating for 'a separateclass'. Such protocol already existed in New Zealand in cases of 'half-casteMaori', and it was understood to exist in the United States with NativeAmericans. Court determination would primarily be through a lifestylemeasure."74Additionally, the involvement of the Conference of East AfricanGovernors was deemed necessary for consensus, though a sense of trepi-dation was expressed with this deferral at the end of the Colonial Officemeeting. One official quipped half-heartedly, 'I am afraid that it may beregarded in some quarters as the thin end of the wedge, and even as opening aserious door, - that of the railway dining car'.75The Colonial Office consequently responded to the Nyasaland adminis-tration in April 1931 along with a separate notice to members of theConference of East African Governors regarding the matter of definition.76'The status of native half-castes is ... a question which raises more than localissues', the letter stated, and 'it is desirable that the whole question should beconsidered in relation to East Africa generally before it assumes a moreserious and urgent character'.77 The letter emphasized the inclination thatthe legal status of 'half-castes' should depend primarily upon a culturalstandard and that 'no obstacle should be placed in the way of native half-castes being classed among members of a higher civilisation where theirstandard and manner of life justifies such classification'.7" The main questionwas whether this consideration should be legalized universally. With theHaythorne-Reed ruling, the current situation was that 'native half-castes'were 'non-natives' regardless of consideration for lifestyle.79 The ColonialOffice was not prepared to accept this position without general discussion.80Consonant with discussions in London, existing laws served as modelsof what difficulties might be encountered and possible resolutions. Thedefinition of 'native' under the Arms and Ammunition Ordinance No. 2 of1891 from Southern Rhodesia included 'Any person being or having been adescendent of any aboriginal native of Africa'. As discussed previously, thiseffectively excluded anyone of 'mixed-race' background from 'non-native'status. A second definition from Northern Rhodesia, in the InterpretationOrdinance No. 55 of 1929, included a cultural component outlined as 'livingamong and after the manner of any such tribe or race'. The perceivedproblem in this case again concerned the case of Swahili and other socialgroups seen as 'native' legally, but 'non-native' culturally. A third possi-bility was to define 'native' as 'Any person who is or whose father or motherwas 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. Ia, 76, 77. West African colonies were considered as well, though persons of mixeddescent were not an issue. See PRO CO 822/36/i6, fol. ib, 59.75 PRO CO 822/36/16, fol. Ib, Ii. 76 MNA si/7o5I/30, fol. II, 22 Apr. 193I.77 MNA si/705I/30, fol. Iza, 20 Apr. I93I; fol. iia, 20 Apr. i93i.78 Ibid. There is particularmention with regardsto children: 'In particular, no obstacleshould be raised to children, legitimate or illegitimate, of European or Indian fathers andnative mothers being treated in accordancewith the status of their fathers where they havebeen brought up in a manner suited to that status'. 79Ibid. 80Ibid.


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THE 'NATIVE' UNDEFINED 469Southern Rhodesia's 'one-drop' rule by limiting consideration to first-generation 'mixed-race' persons only. This option was still seen as tooexclusionary by some, however, given its universal barring of all first-generation persons from any claim to 'non-native' status.81A persistent tension therefore existed between race and culture, withthe latter providing a subterfuge for the former. In the conclusion tothis letter, Lord Passfield stressed his desire that the governments of EastAfrica consider a protocol that would make status depend primarily ona cultural standard.82 However, this position constructed a central con-tradiction as to how 'Westernized' Africans were to be treated. Given theemphasis placed on 'mode of life', the implications of legal status onmission-educated Africans, for example, was unclear. A fundamentalambiguity therefore appeared between privileging race or culture indetermining 'native' or 'non-native' status.83 This tension persisted insubsequent correspondence.

A letter from the Nyasaland Attorney General to the Colonial Secretary inAugust 1931 further outlined the potential legislative complexities thatexisted. Citing frustration that 'it can truthfully be said that no one has satis-factorily solved the problem', he explained that this problem over definitionhad not existed previously since 'all half-castes were living as natives andwished to be treated as natives' and that the new intervention was due to 'afew better educated half-castes, who are protesting against being classified asnatives'. Definitions from other colonies were unhelpful, with incon-sistencies from differing conditions in each colony. He consequently argued,in contrast to the government's previous position thatThe vast majority of half-castes in Nyasaland live in exactly the same manner asnatives and would be completely lost and unhappy if by stroke of a pen, they weredebarred from taking their place in the political life of a native village and I verymuch doubt whether a village Headman would permit a half-caste to remain in hisvillage if he were considered by law to be outside his jurisdiction.84Supporting the position of Northern Rhodesia, he considered this approachbetter for Nyasaland than creating an entirely different class as originallysuggested, since this would necessitate an overhaul of existing ordinancesand laws.85

Correspondence between Northern Rhodesia and the Conference of EastAfrican Governors provides further insight into this line of official thinking.A letter from the Chief Secretary's Office in Livingstone to the Conference inNairobi in August 1931 argued for emphasis on lifestyle over origin:the classificationis not between native and Europeanbut between native and non-native, and that the test in a doubtful case is the mode of living of the individualaffected ... the important issue is to prevent the establishment of a class neither

81 Ibid. 82 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 his position in a letter to theConference of East African Governors, dated 18 Aug. 1931, again reiterating that 'itwouldbe unwiseto endeavouro legislate eparatelyorhalf-castes, hemajority f whomare living under native conditions'. See MNA sI/705I/30, fol. i6, I8 Aug. I93I, 1-3.


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470 CHRISTOPHER JOON-HAI LEEEuropean nor Indian on the one side, nor African on the other, which might sep-arate itself from both, be despised by the one and despise the other.86Significantly, this perspective, like that of Nyasaland's Attorney General,took African opinions into consideration, arguing that separate legislationcould antagonize African authorities and communities. This considerationwas particularly important given the backdrop of transition to indirect rulethroughout the region, prompting a debate that needed to consider the bal-ance of power between the state and African authorities.Diversity of opinion was further sustained in correspondence from otherEast African colonies. Officials in Zanzibar wrote that 'Euro-Africans'and 'Indo-Africans' were small in number though 'Arab-Africans' werelarge in number and considered 'non-Africans'.87 To change this status quothrough the creation of a separate class would be 'politically undesirable'.88Ugandan officials said the issue was not pressing there and that 'mixed-race'persons were 'content to accept the status of natives ... since the advantageswhich, as natives, they enjoy in such matters as the holding of land and theprovision of education are likely to outweigh in the minds of the majority anybenefits they might derive from their being regarded as non-natives'.89Regarding the proposal for definition based on culture, the Ugandan ad-ministration also remarked, in reference to the present level of African edu-cation, that there already existed 'an increasing number of natives whosestandard of living is in every way superior to that of a large number of non-natives'.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 Incontrast, the Kenyan administration argued for 'a formula which makes thelegal status of native half-castes depend primarily upon the standard andmode of their life'.92With competing opinions, a final summary report from the Office of theConference of East African Governors issued in January 1932 stated that nogeneral consensus existed for the Secretary of State's position that status bebased on culture.93 The report further suggested that agreement was unlikelyto be reached through correspondence alone and that the question should beraised instead at the forthcoming conference of law officers.94 Officials inNyasaland agreed.9"The Conference of Law Officers held in 1933 resulted in a published re-port on the 'Status of half castes'.9" This report decided that the so-calledTanganyika 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 July1931. Uganda would also agree with this position. See MNA si/7o5I/3o, fol. 21,Annexure IIIa, io Mar. 1933, 45. With regards to separate education and how it mightcreate a separate class, see MNA si/705'/30, fol. 17g.87 MNA sI/7o05/30, fol. i7c, io Sept. 1931; PRO CO 822/36/16, fol. 26, 10oSept. 1931.8s Ibid.89 MNA sI/7o05I/30, fol. I7b, 9 July 1931; PRO CO 822/36/16, fol. 25, 9 July 1931.90 Ibid. 91 Ibid.92 MNA sI/705I/30, fol. I7a, 8 Jan. 1932; PRO CO 822/36/16, fol. 24, 8 Jan. 1932.93 MNA si/705I/30, fol. 17, 12 Jan. 1932, I. 94 Ibid.95 MNA sI/705I/30, fol. 18, 6 Feb. 1932. 96 MNA sI/705I/30, fol. 21.


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THE'NATIVE' UNDEFINED 471severally advanced by the Governments contributing memoranda on thesubject and at the same time avoids any word implying inherent inferiority ofsocial status'." Furthermore, it met the original wishes of the ColonialOffice.98 The Tanganyika Bill provided this summary:All racial discrimination in law is objectionable in principle although in certainexceptional cases it can be justified. The Tanganyika Government, therefore, en-deavours, as far as possible, to avoid any such discrimination. It recognizes, how-ever, that for certain purposes African natives must be described in the law; andthat the expression 'African' might be construed to include French citizens inAlgeria, Egyptians, South Africans, and others, with inconvenient consequences.It therefore proposes to introduce consolidating legislation defining natives in adescriptive 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 foruse when the provisions of any particular enactment are required to be applied to acertain section of the community, generally described as 'the natives'.99Based on this carefully phrased prerogative, the bill outlined how a personcould apply for 'non-native' status by meeting three basic conditions. Thesewere:(a) that he is partly of non-native descent. This is a definite condition not withinthe power of the individual to change in any way; (b) that he is not occupying landin accordance with native tenure or customary law; and (c) that he is not livingamong the members of any African tribe or community in accordance with theircustomary mode of life.100Debate still continued however over the expressions 'after the manner of'and 'customary mode of life':a well-to-do Muganda might live in a brick house, use tables and chairs, driveabout in a car, wear European clothes, etc., and this might be called 'the mannerof' 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.101Lifestyle as a strict standard therefore retained transparent problems, withthe variegated effects of the 'civilizing' mission still posing potential con-tradictions. To avoid further deliberation and unwanted political impli-cations, the bill made note that the distinction of 'non-native' status did notmake it an exemption law per se: 'Exemption laws involved the acceptance ofa principle which this Government does not accept, that is the principle of asuperior non-native legal status and an inferior native status'.102 Colonialadministrations consequently faced a task of defining difference in principlewithout dispensing a transparent sense of legal and racial hierarchy at thesame time.

The final version of the bill, which was entitled 'The Interpretation(Definition of "Native") Ordinance, 1933' contained the following withregards to how to define 'native' status:'Native' means any person who is a member of or any one of whose parents is orwas a member of an indigenous African tribe or community, in which term are

97 MNA sI/705I/30, fols. 21, 29, 30. 98 Ibid.99 MNA si/705I/30, fol. zI, Annexure vIII, 53, 54- ioo Ibid. iOi Ibid. 102 Ibid.


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472 CHRISTOPHER JOON-HAI LEEincluded the people known as the Swahili; but the expression aforesaid shall notinclude - an Arab, a Somali, a Baluchi born in Africa, a Madagascanor a ComoroIslander, or any person who, of his own motion, proves to the satisfaction of themagistrateof a subordinate court of the first class - that he is partly of non-nativedescent, and that he is not occupying land in accordance with native tenure orcustomarylaw, and that he is not living among the members of any Africantribe orcommunity in accordancewith their customary mode of life.103Explicit 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. Abundle of determining factors existed, including a person's specific cultural -and implicitly racial - background, the issue of land use, social circles andlifestyle. These clustered factors reflected local issues of land use and legaljurisdiction - as with the status of resident colonial foreigners - as much asthey evinced a broader subtext of racial and cultural difference. Cultureappeared concretely as the deciding factor, with no explicit mention of racialdescent. The expressive use of 'customary mode of life' implied that statusagain depended upon one's proximity to Western cultural norms.Of importance to persons of 'mixed-race' background were the words 'anyone of whose parents is or was a member of an indigenous African tribe orcommunity'. With this wording, anyone of African origin was automatically'native' in status. Only by meeting the qualifications described previouslyand by going through a formal court application process and receiving acertificate declaring the applicant's descent could one's status shift to 'non-native'.104 Focusing specifically on the condition of persons of 'partly non-native descent', Clause 5 of the bill re-emphasized this process, stating:'Every person partly of non-native descent to whom a certificate under thisOrdinance has been granted, shall be deemed, for all purposes, to be of therace of his non-native parent'.15Y The application itself, provided in sampleformat, was a one-page form of declaration. In addition to meeting qualifi-cations of descent, land tenure and mode of life, the applicant also needed tosubmit occupation, parents' names and their 'descriptions', as well as aphotograph.106These recommendations by the Conference of Law Officers were pro-visional, and reservations were soon expressed about the proposed plan. TheKenyan government held the view that Clause 5 could give rise to 'con-siderable difficulties' involving 'the acquisition by persons only partly ofnon-native descent of land in the Highlands'.'17 Kenyan officials were clearlyconcerned how this situation would affect measures to safeguard land forwhite settlers.1'8 In the case of Nyasaland, Kenya's concerns would not applysince land tenure restrictions were different, though consultation was advisedwith 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 theDefinition of the Expression "Native"', Clause 2. Included in MNA SI/420/33, fol. I, 8Dec. 1933. 104MNA SI/420/33, fol. 2, Clause 3.105 MNA SI/420/33, fol. 3, Clause 5- 106 MNA SI/420/33, fol. 5-107MNA SI/420/33, fol. I, 8 Dec. 1933. 108 MNA SI/420/33, fol. 9, I Mar. 1934.'09 MNA SI/420/33, fol. 8, 12 Feb. 1934; MNA SI/420/33, fol. 9, I Mar. 1934.


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THE 'NATIVE' UNDEFINED 473Africa."noConsideration also naturally existed over the number of Anglo-Africans and therefore the degree to which this issue was to be extended. A1934 census totaled the community at I202, 654 males and 548 females,ranging in age from under five years to marriageable age.l Despite this smallnumber that effectively ruled out legislating for 'a separate class', the Anglo-African 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 temporaryconsensus on definition in 1933 would not hold. In April 1934 a Nairobiofficial wrote 'it was realised that each Colony had its own peculiar diffi-culties' and that 'the Ordinances which would be eventually passed in thevarious Colonies must of necessity differ'.112 Kenya had not passed theInterpretation Bill of 1933 since officials felt that the status of Arabs andSomalis should receive priority, separate from the 'half-caste' question.113This local concern, as with Nyasaland, reflected the difficulty in reachingdecisive resolution for East Africa as a whole and that rather than a generalpolicy, 'a bill on the general lines of the Tanganyika Bill adapted to eachColony appeared to offer the best hope of a solution'.114Correspondence extending into late 1935 between Nyasaland andNorthern and Southern Rhodesia indicate uncertainty and an increasinglylethargic attitude.115In December 1935, Northern Rhodesia indicated thatno decision had been reached within its administration.116 During the samemonth, Southern Rhodesia relayed a definition incorporating race and cul-ture that had been discussed there and was to be addressed further in the nextsession of the Rhodesian parliament."'7 Sentiments expressed in Nyasalandwere that there was no reason why the decision of Carr v. Karim should notbe followed.11s Deliberation existed, however, with the Senior ProvincialCommissioner for the Southern Province, where much of the Anglo-Africancommunity lived, still preferring 'to enact a definition of "native" and sodetermine the status of half-castes' permanently.119By January 1938 the Nyasaland administration attempted to resolve theexisting impasse by asking the Conference of East African Governors if anyfurther actions had been taken legislating the definition of 'native'.120 Inreply, reference was made to Kenya Government Ordinance No. LVof 1934,entitled 'The Interpretation (Definition of "Native") Ordinance, 1934'.121Despite earlier concerns, this bill was similar to the 1933 draft.122A second

110MNA SI/420/33, fol. 12, 26 Mar. 1934.111MNA SI/420/33, no folio number given.112MNA SI/420/33, fol. 17, 30 Apr. 1934. 113Ibid. 114 Ibid.115 MNA SI/420/33, fols. 19 to 25. 116 MNA SI/420/33, fol. 28, 2 Dec. 1935.17MNA SI/42o/33, fol. 26, 3 Dec. 1935.18 MNA SI/420/33, fol. 31, 21 Oct. 1937.19 MNA SI/420/33, fol. 32, 25 Oct. 1937.120MNA SI/420/33, fol. 34, 12 Jan. 1938.121 MNA SI/420/33, fol. 35, I7 Jan. 1938.122MNA 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 procedureswithin their jurisdiction. Hand-written at the end of the Kenya definition pamphlet was alist of Nyasaland ordinances that provided a working definition of 'native' and thereforecould be affected. The specific ordinances listed include: Interpretation and General


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474 CHRISTOPHER JOON-HAI LEEletter from the Conferenceof East African Governors in February1938 in-dicated that no action had yet been taken by Tanganyika, NorthernRhodesia, Zanzibar or Uganda.123With this failed consensus and with defi-nitions of 'native' in existing ordinances, the ending memos of this govern-ment file, dating from March 1938, indicate that no further action wastaken.124

CONCLUSIONIn 1933 a system of indirect rule was formally established in Nyasalandthrough the implementation of Native Authority and Native CourtsOrdinances. This action completed a gradual process that began in 1912.Concurrent with these ordinances was a new land bill in 1933 vesting in-creased authority in the governor as trustee over land in the protectorate.This move consequently undermined further the control settlers had overland.125A shift thereforetook hold from orienting Nyasalandaroundsettleragriculturalproductionto adaptingthe economy aroundAfricanproduction,from addressing 'non-native' interests to 'native' interests. However, thiseconomic reorientation and administrative restructuring was not withoutcomplication. 'Native' associations- advocacy groups whose membershipconsisted of a mission-educated African elite - played a significant role inshaping the outcome of these developments, presenting a pressure andchallenge to political change and these categoricaldistinctions. The parallelpersistence of the Anglo-African Association would also complicate thisprocess of re-institutionalizing the customary law and authority throughtheir ongoing demands for status throughout the 1930s. Against thisbackdrop, the category of 'native' therefore continued to be an importantdistinction, despite its inconclusive premise, when situations of power andauthority insisted upon it.126The definition of 'native' continued to be challenged in officialthinkingas well. In an essay published in 1948 entitled 'The administration ofAfrican customarylaw', Ronald E. Robinson responded that the answertothe basic question of who was accountableto native courts 'should obviouslybe, natives'.127 However, he immediately noted 'this is generally true,Clauses, No. 12 of 191 I; Immigration Restriction Order No. 17 of 1922; Police OrderNo. 5 of 1924; Prison Order No. 9 of 1924; Tobacco Order No. 5 of 1926; Credit TradewithNativesOrderNo. I5 of 1926;NativeHutPollTaxOrderNo. 21of 1926;AsylumsOrdinanceNo. 18of 1928;CriminalProcedureCodeNo. 23 of 1929; and(handwritten)Definitionf 'Non-Native'nNon-Native ollTaxOrderNo.4.

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, 1936), III, II2.126The Central African Federation of the postwar period constituted another reversalwhen settler interests again took hold. Ann Stoler has separately noted the 'problem' ofmetis and the failure of legislating for separate status in the French colonies. See AnnLaura Stoler, 'Sexual affronts and racial frontiers: European identities and the culturalpolitics of exclusion in colonial Southeast Asia', Comparative Studies in Society andHistory, 34 (1992), 532. Republished as chapter 4 in Stoler, Carnal Knowledge.

127 R. E. Robinson, 'The administration of African customary law', Journal of AfricanAdministration, I (i949), I159.


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THE'NATIVE' UNDEFINED 475but definitions of the term vary somewhat from territory to territory'.128 Hereiterated the two principles of racial descent and culture for determiningstatus. He also stated that the mode of life test applied only in cases per-taining to 'persons of mixed blood'.129 A separate essay on customary lawpublished in 1950 again raised the definition of the term 'native' with thecomment, 'This is the subject of a good deal of uncertainty, and definitionsvary'.130 Principles of racial descent and lifestyle were again mentioned asreference points. In South Africa the three 'tests' were '(a) appearance; (b)parentage (or preponderance of blood); and (c) habits of life, and associationsof the subject'.131 The issue of parentage was primary, the others 'being onlycorroborative, or helpful when the antecedents of the subject are uncer-tain'.132 A firm, universal definition therefore had yet to be reached in thepost-Second World War period, leaving contradictions that would event-ually be capitalized upon by anti-colonial activists.The conclusion to be drawn from this genealogy, then, is that defining theterm 'native' - an ostensibly self-evident and obvious task, and an importantone upon which many relationships of power were predicated - was difficultin practice. When called upon to arrive at a conclusive and universally ap-plicable definition, colonial administrators found it presented problems ofconceptualization and consensus. Categories of 'native' and 'non-native'conflicted with competing, and periodically incompatible, understandings ofrace, culture and origin. Though 'mode of life' was perceived as a solution tocircumventing a transparently racial agenda, this position raised largerquestions of contradiction regarding how Western-acculturated Africansshould be defined, a conceptual slippage that evinced the static nature ofthe Dual Mandate system and the equally fixed nature of the identities thatextended from it. Origin was seen as a last recourse from the point of viewof the Nyasaland administration and the Haythorne-Reed ruling, thoughthis constituted a return to the original question and problem. The colonialkinship connections of Anglo-Africans to African, European and Indiancommunities complicated this basic colonial taxonomy. Indeed, the term'kinship' is emphasized here, suggesting the relative permanence of suchconnections and the sets of politics embedded within them, rather thanmomentary acts of racial transgression, as discussed in other studies, thatexist ephemerally in the historical record.133Achieving legibility on this basiswas not a simple task.

James Clifford has addressed a similar situation of legibility and identitythrough a court case in The Predicament of Culture. His final chapter,128 Ibid. 129 Ibid.130 A. N. Allott, 'The extent of the operation of Native customary law, applicabilityand repugnancy', Journal of African Administration, 2 (i950), 5-131 Ibid.6. 132 Ibid.133 The title of this article is in part a nod to J. van Velsen's classic study, The Politics ofKinship: A Study in Social Manipulation among the Lakeside Tonga of Malawi(Manchester, I97I). Stoler, among others, tends to focus on moments of transgressionover 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 Educationof Desire:Foucault'sHistory of Sexuality and the Colonial Orderof Things (Durham NC, I995). Seealso Philippa Levine, Prostitution, Race and Politics: Policing Venereal Disease in theBritish Empire (New York, 2003).


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476 CHRISTOPHER JOON-HAI LEE'Identity in Mashpee', discusses a 1977 legal dispute involving theMashpee Native American community in Massachusetts that became'a borderline case' of identity where 'powerful ways of looking ... becameinescapably problematic'.134 Clifford writes of how 'The trial was less asearch for the facts of Mashpee Indian culture and history than it was anexperiment in translation, part of a long historical conflict and negotiation of"Indian" and "American" identities'. Though the context of this case isdifferent from the one in this essay, the two situations are similar insofar asthey both illustrate the difficulty of definition and the consequent levels ofcontestation that can occur: from the legal, to the social, to the political,to the interpersonal. State vision in both cases was based on normativecategories of identity; in both cases lived experience provided a differentmirror.In this sense, state optics can be described as codified and thus limitedin specific ways. Identifying these limits - rather than uncritically repro-ducing them - is a necessary task. Protocol demanded that Nyasaland seekrecourse to the Colonial Office, other East African colonies and the abstractstructure of the Dual Mandate system for a resolution to its predicament.This strategy failed to solve this situation conclusively, however. Thestructural characteristics of the indirect rule system were a source of bothstrength - through uniformity, stability and efficiency - but also weak-ness, as demonstrated through the ambiguity and uncertainty of how tohandle local contingencies. The implications of this case therefore provokecritical thinking about analytic categories that scholars have used, which -consciously or unconsciously - have, at times, been inherited extensions ofsuch 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 suchdistinctions - but also mark an inherited discourse of interpretation.135Mahmood Mamdani's stated aim of an African unit of analysis, if at one levelcommendable, betrays empirical limitations and a conceptual ambiguitythrough its very reliance on a generic model of colonial rule: one Europeanin origin and perspective, but also premised on such ill-defined terms as'native' and 'non-native'.136 Indeed, the employment of indirect rule as auniversal interpretive framework appears as a revalorization of a colonialperspective and reproduces a working knowledge of states and societies inAfrica that has been the object of criticism for some time. Better historicizingpostcolonial conditions in Africa, understanding the legacies of colonialinstitutions and breaking the 'exceptionalism' of South Africa are important

134 His emphasis. James Clifford, The Predicament of Culture: Twentieth-CenturyEthnography,Literature, and Art (Cambridge, 1988), 289.135 Mamdani, Citizen and Subject; Mahmood Mamdani, When VictimsBecomeKillers:Colonialism,Nativism, and the Genocide in Rwanda (Princeton, zool).136A standard critique of his work has been through the privileging of localcontingencies over his universally applied model. With regards to origins, Mamdani'sunderstandings of bifurcation and despotism also owe a considerable debt to HannahArendt, uncredited within his I996 text. See Hannah Arendt, The Origins ofTotalitarianism (New York, 1973), ch. 7, 'Race and bureaucracy'.


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THE'NATIVE' UNDEFINED 477tasks.1"'A conceptual recourse to such philosophies of rule, however, resultsin a reproduction of colonial knowledge, the redeployment of an inheriteddiscourse of interpretation, leaving internal tensions, as examined here, un-addressed.138Earlier categorical distinctions such as 'colonizer'/' colonized' -that alsostem from the 'native'/'non-native' binary and bear a certain pressure onMamdani's work - must also be considered in a sharper historical light.Seminal work by Fanon and Albert Memmi that outlined such categorieswere born during times of revolution, times of social crisis when suchdistinctions resemble what Louis Althusser has referred to elsewhere as'determination in the last instance'."'139Though this body of anti-colonialknowledge is counter-posed to that used by Mamdani, a common ground isshared that is more abstract than attendant to variegated nuances of changeover time. Indeed, it is significant to observe that Mamdani's work is alsosituated in contexts of crisis and violence: apartheid South Africa and theRwandan genocide of 1994. While such categories may never be completelydiscarded, ongoing attention should be paid to their historical origin, theirinterpretive limitations and the ways in which such categories were chal-lenged by intrinsic tensions, as well as on an everyday basis. The world thatthe Anglo-African community of Nyasaland inhabited was defined in part bythese terms, but never completely.140Recent scholarship has demonstrated how Africans were imagined asparticular subjects - patients, consumers and workers - outside of contextsof direct conflict.141 This essay seeks to contribute to this body of literatureby offering a case study demonstrating the inherent difficulties and con-tradictions in such processes of colonial discourse and subject makingas posed by the contingent voices and actions of local actors. The minorcourt case of Carr v. Karim opened a broader discussion about oneof the most fundamental terms in the colonial lexicon, a debate that wasultimately inconclusive. The Anglo-African community of Nyasaland

137This 'exceptionalism', touched upon earlier by Leonard Thompson in the firstedition of the Oxford History of South Africa (1969), must also be better itemized: 'pol-itical exceptionalism' appears weakened, but 'economic exceptionalism' remains.138 A sharper distinction must be drawn between pointing to the tactile legacies ofcolonial institutions and using abstract philosophies of rule for interpretation. Mythoughts here on discourse, intellectual genealogy and the problems of perspective drawfrom 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 andPhilosophyand OtherEssays (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 MahmoodMamdani, 'Beyond settler and native as political identities: overcoming the politicallegacy of colonialism', ComparativeStudies in Society and History, 43 (200oo1),51-64.141 Megan Vaughan, Curing their Ills: Colonial Power and African Illness (Stanford,

1991); Timothy Burke, LifebuoyMen, Lux Women: Commodification,Consumption,andCleanliness in Modern Zimbabwe (Durham NC, I996); Cooper, Decolonization andAfrican Society; Diana Wylie, Starving on a Full Stomach: Hunger and the Triumph ofCultural Racism in Modern South Africa (Charlottesville, zool ).


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478 CHRISTOPHER JOON-HAI LEEwould continue to blur such categorical distinctions as a strategy of em-powerment, as did similar communities elsewhere, through their colonialkinships. This episode therefore provides an important example of howcolonial conditions at times confounded and ultimately shaped ideas in themetropole.142

142 For this agenda,see Ann LauraStoler and FrederickCooper, Betweenmetropoleand colony: rethinkinga researchagenda',in FrederickCooperand Ann LauraStoler(eds.), Tensionsf Empire:ColonialCulturesn a BourgeoisWorld Berkeley, 997), 1-56.

christopher joon-hai lee - the 'native' undefined colonial categories, anglo-african status and the...

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