Análisis de los datos

The legislation for the Region was in the form of the Queen's Regulations (made by the Governor or High Commissioner) and Regulations

(made by the Administrator) for the administration of justice, the raising of revenue and generally for the peace, order and good government of all persons within the Region.^ Such legislation could be disallowed by H.M. through a Secretary of State and upon such disallowance being published in the G a z e t t e , the provisions so disallowed would cease to have effect but without prejudice to anything hitherto lawfully done

g

thereunder. The North-Eastern Rhodesia Order in Council formed the basis of Zambia's constitutional development and three aspects of the form of administration established by the Order deserve brief mention.

(i) Land Occupation.

The Region's administration was entrusted to the BSAC. All land in the Region was wholly vested in the BSAC and the Company was obligated to assign to natives land sufficient for their occupation

1. UK: North-Eastern Rhodesia Order in Council, 1900, Art. 4;

B F S P , 1900, Vol. 92, p. 502; Statute Law of NR, 1 9 1 7 , p. 39.

2. British Central Africa Order in Council, 1907, Art. 3;

B F S P , Vol. 100, 1907, p. 94.

3. North-Eastern Rhodesia Order in Council, 1907, Art. 3 4. North-Eastern Rhodesia Order in Council, 1909, Art. 4 5. North-Eastern Rhodesia Order in Council, 1900, Art. 17.

6. ibid. Art. 17.

43.

and agricultural and pastoral requirements. Land was also vested in the BSAC in North-Western Rhodesia. In Barotseland - which was formally and separately declared a 'Protectorate' - land was not vested in the BSAC but remained vested in the Paramount Chief, except that the BSAC claimed mineral rights in the land in accordance with its agreements with Lewanika.

(ii) Maintenance of Law and Order.

For the maintenance of law and order, a military police force was formed under the direct control and authority of the High Commissioner. 2 A

prisons system was constituted to handle a prison population wh i c h was on the increase as a result of the creation of new offences such as failure to report for work, pay taxes or remain in tribal areas. A court system was established with a High Court w ith full jurisdiction in civil and criminal matters. 3 The law - civil and criminal - applied in the Courts was, and

the procedure and practice to be obs e r v e d and followed were, those obtaining 4

before the Courts of Justice and Justices of the Peace in England. The Courts in the Region were required to apply English law and observe and follow English procedures and practices so far as local circumstances permitted. In addition to the imported English law, the locally made

Queen's Regulations were also used in the maintenance of law and o r d e r and these were required to "respect any native laws and customs by which the civil relations of any native chief, tribe or population under Her Majesty's protection are now regulated, except so far as the same may be incompatible with the due exercise of Her Majesty's p ower and jurisdiction."'*

The BSAC did not enjoy sovereignty over the Regions but m e r e l y acted as the agent for the U K Government under whose protection a nd authority (its Charter) it operated. The administration was, therefore,

1. UK: North-Eastern Rhodesia Order in Council, 1900, Art. 40.

2. ibid. Art. 20> i n f r a , p. 392.

3. ibid. Art. 21(1); i n f r a , p. 90.

4. ibid. Art. 21(2).

5. ibid. Art. 17.

subject of control by the Imperial Power, H.M.'s Government in the UK.

(iii) Political Activities.

Although the Order of 1900 treated the Region more as a 'colony', e.g. by vesting all land in the BSAC, than as a 'protectorate', it did not give the settlers political power. The point of view of English settlers in 'colonies' was said to be that they could not settle abroad w i t hout carrying "the King and the duty of allegiance to the King, neither could they settle without carrying a Parliament and the right to assemble and vote taxes in that P arliament Although the Order provided that the Company by resolution of its Board of Director could establish a Council to assist the Administrator composed of the Administrator, a senior judge, ex o f f i c i o , and less than three other members appointed by the Company with the approval of a Secretary of State to hold office for three years, 2 it was premature for political party organization and/or

establishment of an elected representative body.

(d) Amalgamation of Barotzeland-North Western and North-Eastern Rhodesia : Creation of NR.

The BSAC's view was that the two regions to be effectively and efficiently administered, should be amalgamated. A letter from Downing Street, the official residence of the British Prime Minister, to the Treasury, stated as f o l l o w s

;-I am directed by M r Secretary Harcourt to transmit for the information of the Lords Commissioner of the Treasury a draft Order in Council (Northern R h odesia Order in Council, 1910) the purpose of which is the

1. Barker, Sir Ernest, "The Ideals of the Commonwealth", in Parliamentary Government in the C o m m onwealth? by Bailey, S.D. (Ed.),

(1951) cited in "Government in the Colonies", P A , Vol. 6, 1952-53, p. 58.

2. UK: North-Eastern R h o d e s i a Order in Council, 1900, Art. 12;

Statute Law of NR, 1 9 1 7 , p. 37.

amalgamation of the territories of North Western mention of Barotseland; paradoxically although there is no record showing that the native chiefs and people of the two Regions were consulted on the amalgamation, there is a record that Lewanika was consulted on the amalgamation exercise. There is a letter from L.A.

Wallace, the then Acting Administrator for the North-Western Rhodesia, Livingstone, to the Secretary of the BSAC in London, informing him of a meeting between King Lewanika and a Colonel Fair, representing the

High Commissioner, at which the provisions of the draft Order, 1911,

were explained to Lewanika, w h o was recorded to have objected to Clause 42 of the Order which purported to allow- natives to buy, h o l d and sell

land. 2 The NR Order in Council, 1911, delimited the new territory's

borders to be with SR, G e r m a n y South West and East Africa, Portuguese East and West Africa, the Congo Free State, Nyasaland and Bechuanaland Protectorates, and

The Territory with i n the limits- of this Order shall be known as Northern Rhodesia.

The combined territory had a population of 818,529 Africans (379,055 in the foamier North-Eastern and 439,529 in the North-Western). 4 Institute, Livingstone, 1941, p. 13.

1. NR:

2

.

3. UK:

4. NR:

46.

The NR Order in Council, 1911, was made under the provisions of the Foreign Jurisdiction Act, 1890, whose m ain object was to grant H.M. jurisdiction over H.M.'s subjects for the time being resident in or resorting to foreign lands.^ The O rder di d n ot introduce any new

ideas except extending the provisions of the North-Eastern Rhodesia Order, 1900 to the combined territory. The legislation for the territory was to

2

be made by the High Commissioner's Proclamations published in the Gazette under his authority. 3 The land remained ves t e d in the BSAC which retained

the universal right in all land assigned to natives and that if the Company wanted such land for purposes of mineral development or as sites for townships (that is European settlements) or for railways or other public works, the Administrator w i t h the approval of the High Commissioner could order the natives to move. 4 In Barotseland, however, land could not

be alienated from the Paramount Ch i e f and his people; though this restriction was confined to land covered in the BSAC»Lewanika agreement of 17th

October, 1900 and 11th August., 1909.•5

The provisions of Art. 12 of the North-Eastern Rhodesia Order in Council, 1900 was reproduced in the 19L1 Order in to to with

consequential changes: the Council was to be composed of the Administrator, appointed by the High Commissioner, a senior judge, the Resident

Commissioner, who could attend, speak thereat b u t without a vote, and not less than three other members appointed b y the BSAC with the approval of a Secretary of State. This provision could no t stimulate political organization: it perceived the establishment of a non-political party

1. UK: 1890, 54 & 55 Vic. 37, sec. 2, see also Morris, H.F.

and Read, J»S., indirect R u l e ' a n d the Search for

Justice ^ Essays in East A f r ican Legal System; Oxford, 1972, in particular C h a p t e r 2.

2. Northern Rhodesia Order in Council, 1911, A rt.17.

3. ibid. Art. 3.

4. ibid. Art. 43.

5. ibid. Art. 40.

6. ibid. Art. 13.

administration, based on nomination or appointment. A l though by 1911 territorial acquisitions and re-adjustments had come to an end in Central Africa, it was still premature for emergence of political parties formed either by the settlers or Africans ai m e d at challenging colonial rule o r to complement colonial administration.

Party organization in its origin was in its core, a social formation; a body of persons coming together in the p u r s u i t of a set of ideas and forming a social group in the area o f society. For

political organizations to emerge, the people in the society should be free to discuss and clarify their common ideas among themselves,

formulate their goals and programmes and should be free to publicly defend such ideas, goals and programmes in discussions against other similar groups. Eventually, the groups acquire their ow n tags, leaders and policies, and, finally seek support from the m e m bers of the public.

The provisions of Art. 13 of the 1911 Order were not a imed at stimulating that sort of political evolution and they were not formulated in

contemplation of political activities among the m a j o r i t y of the people in the population, the Africans, who lived under their respective chiefly rule and were not yet ready or capable of e xercising any of the political rights and duties of the k i n d a nticipated by those provisions.

On the other hand, the handful white settlers, although not posed to oust colonial rule, perceived government in the context of democratic institutions in which they could participate on the basis

1

of universal (male) adult suffrage. The provisions o f Art. 13 of the 1911 Order did not sanction the establishment of such a democratically elected representative assembly probably because of NR's status of being a ‘p r o t e c t o r a t e 1 and not a 'colony' in wh i c h settlers could

constitute a 'parliament' elected by universal suffrage. The provisions

1. I n f r a , p .. 50

however, acknowledged the need for a machinery through which the settlers' views could be channeled to the authorities. In as far as native aspirations were concerned, the 1911 Order empowered the

Administrator to appoint, with the approval of the High Commissioner,

a Secretary for Native Affairs and his officials sytled Native Commissioner and Assistant Native Commissioners and Magistrate to administer 'native affairs'-^ a device to establish both central control and 'indirect rule' of the natives in that centrally appointed colonial officials were

assisted by native chiefs in the administration of natives. The Order pro v i d e d against discrimination by enacting that no conditions,

disabilities or restrictions were to be imposed upon natives without the previous consent of a Secretary of State, save in respect of

fire-arms, ammunition, liquor or any matter authorized by the Secretary of State. 2 This was an important provision in that, if properly

construed and applied, it meant that the nearly one million indigenous people still living under a tribal form of organization could compete or work side by side with the thousand of settlers, highly educated, p olitically mature and economically powerful. F o r instance, if the settlers were free to form and belong to political parties or being granted universal suffrage, the natives should enjoy the same right

w ithout any condition, disability or restriction since that did not concern fire-arms, ammunition or liquor. There was divergence, however,

between law and practice in that condition, disability or restriction was p l a c e d on the natives which wa s not correspondingly placed on the

3

non-natives. Some of such restrictions etc., w i l l b e considered in the 4

context of the establishment of governemntal institutions.

1. UK: Northern Rhodesia O rder in Council, 1911. Art. 38(1).

2. ibid. Art. 39.

3. See for instance Reg. 5 of the Natives in the

Townships Regulations, 1909, No. 4 which restricted native residence, presence and movements in townships, i . e . European-settled areas.

4. Infra, p. 49.