COLONIAL LJ5,, /'CTSTQMAHT' LAW ANJJ MAMPRUSI LITIOAETS 7.5V My present research involves a study of the development, i n t e r p l ay and rooting of various legal forms - "customary'5 law, Is.lamio law and B r i t i sh colonial lav/ - among1 the Mamprusi chiefdoms in northern Ghana. Although my research is s et within a d e s c r i p- t i ve framework of l e g al h i s t o r y ,, my primary objective is to u n i te the subject of law ?/ith t he p o l i t i c a l? economic and s o c i al history of t he Mamprusi under B r i t i sh rule and thereby'demonstrate how the h i s t o r i a nfs study of lav/ can enrich our a b i l i ty to recon- s t r u ct t he experiences of an African people during a period of f a i r ly rapid change» "Scholarly-..iniarest in law in Africa has a long tradition,, Briefly, one may categorise the broad parameters of this interest in terms of three approaches, although the boundaries delineating these approaches are by no means hard and fas to There is the *PhuD Research Student, University of Stanford. - 65""- anthropological approach' to the study of law and the settlement • of disputes/ '.There are the applied concerns of administrators and lawyer~scholars s and" there is-'the focus, bye historians on process and''change' in'their studies of .law and .African, legal sy-steias, 'The early anthropological studies of African law were shaped by the perceived"' imperatives of • colonialism-. ' Indeed? many,:,of the anthropologists, of"-whan Rattray. is- a prominent;• example $.- .were in the employ of colonial .-governments»••• There was •-•a-'need -.trc-better. unders-tand the subject populations in. order -to-more effectively rule them* Since Suropean officials considered-vlalr and the rule !of law- to;'-b'e essential elements' in the maintenance .-and :oontrol. of a social order,, it was natural that anthropologists -during the-: coloriial'period-.should'Have ...directed their .-attention -towards -the :i ^societies. .: , . - •' '..-:• (•.:.• '•••• " --In-general•,!'..anthropologists- employed two paradigng-.;_.in their examisaa#ionsi-'of la#»;'- •ileefc.-'and-iRattxaifj..among others,- adhered to. ..afe-1'evol3A>tiionrist p-erspectdve in.ffhich-tbxs' law of-Africaxi.. societies reflectedL-'aa'-e«Elie]j-;istafe•.in-.the.-;dev.el'©pirient of, "civilization*'* .. whidfei was, Jft4r'eutig5§iated ¥iith.-;bhe developed- .societies of Britain and ::<3onti3an3Rt±alrSurspe (Meek, 19371 Sattrays .1932), Law was • conceived-as- evolving.'and-reflecting a.process of -sacietal transition"from -.a politically decentralized to a-more cen.tEaliaed social system., In contrast'to the evolutionist paradigm -was.:the functionalist perspective represented most notably by Malinowski with his conception of 1^ as a broad and rather vag^ie range of a society's efforts to maintain order and cohesion. Differences in the law of various societies could be explained by referring to the particular characteristics and nature of their social organi- zation. Although belief in the validity of either or both of these paradigms was part of the cultural baggage colonial officials and administrators brought with them? the two approaches were often presented in anthropological monographs at too abstract and theoretical a level to be of much practical value to those "who .. were seeking to determine whe± role indigenous institutions could. Play in the operation of the colonial .state. Increasingly, ' attention was turned towards the study of rules and procedures alloyed in the resolution of disputes. S c h e ma j t a ^ p dc of " ^ ^ ^ L m ^ m^ (1938), a collection of rules gathered from the oral t e s t i f i es of elders, pr o v l d ed B r l t i sh of Bechuanaland with a g^ to W o f f i a^t ^ ^ it should be noted, Sohapera did not directly observe an, actual adjudications, ^ e r t h e l e s sf the practical orientation'of his " inquiries makes his work on° of thp h ++ •••••• • 1 ^ne b e t t er e x a m p l es of t he w a ys t he a n t h r o p o l o gy of law d u r i n- t ho d o l o n, , ' . ] > "' A, i-n-^ o o i o n x al p e r x od c o n t r i b u t ed to .. , 67 The major difference between Gluckman ajad Schaperas however",, is , ' t h at G-lucknijsaa aciuaACLy.Kwl{tmes:sa& .the- ways / in which Biaxotse. judges handled .tte^fiisp^teS: t?h£ch -mere cpu$-:b sf ore "them.- •• 'IItrou-fh.'his; • ••••„ s rbfr-adg'adie'atioim-j'.j-laokmaxL wa© -able'to describe ar 4 pktibH^toitB-csiBbtae^liaw witiairi a concrete s o e i al • context1, :-.-H#:"MierefO33e^efflo'tre"d'.*the,'s%ady &n& boncep't'i-on • of law* and legal" systems ••bTit'-^oifVtiie' l o f ty aaff' idealafsflQ. coBfMg0535ii I earlier?.ainaiysts had 'tended'to 'sequ'ester -it»''; ••"•" • • '.. •'i'ff-fae" emphasis••ori"-falds.'-wiiibh isaaJks -the apj>2J'oach0s.- of ': and S.cha.p:eria'"3?epr&SeBted SM-ef£e:ctive'- lawyers ••.cotilctr'.ffieM-'.tiie eirolut'i-ohist and . into, sbme-kindvvof p r a c t i c al applibatiori--in• ?rh:i0h-.%he*i;bi&liateS-4ll!i:i ••. la?ff -as .aa.-.. instrument.- .-o-f..isoc'ial -ehaage could be- b.onftie • out1*.-.!-.-1'he process . .of ":i?iaoder.iii-zi,i^ir: it •• BM.;incbrporitixig it- within .*jaie.-. • • • - colonial -sta^e-,aEd -laAer .©"£. tli# j>ost-*ealDttial; n a t i o n - s t a t e. In the the ••st»iety.--cse -^ s c i e n c e .- contributions- 'tft^t e0S0trfe-iai3^>=a ^psESbl'eft of applie'd {t^O^''i552)-'«ld maay;- of it ^^ whi - 68- - retaining as, imoh as Is practicable the specific characteristics of such lassv •„• .:. The interest of historians in the study of law may be characterised "by the different objectives of their analyses. As in the case of administrators and lawyers ? 'historians have seen law as an agent of social change and political domination. Ranger in his work with Hobsbawm (1983) and Chanock In his studies on Malawi (1985) view ^customary!! law and i ts codification as intrinsic to a process of domination In which law becomes part of a, broader construction of a -«traditlonalrl' African society more amenable to the-exigencies of administration,, :Snyder (1981), although strictly speaking not a historian, incorporates much historical material into his analysis miieb sees law as part of the efforts of the state to channel and'direct transformations in the relations of production. Lastly, social historians, in particular those included in ths Hay and Wright collection (1982), have-used litigation .and legal records as source material for the reconstruction of African lives, ¥4? study will take advantage of these recent trends' in the historians' analyses of African law. I Intend to reassess the ' writing on African legal jsjcfttans. sfaiob ..afewses elements of continuity axO. Bonriv&L in A&ioan «castoasey'1 'law {imbin and a - 69 - "customary?f law should not be understood outside of the impact of the colonial political economy upon African communities. The questions which I am striving to answer in this regard are to what extent changes in legal form engendered by colonial rule reflected and/or induced trans fox-mat ions in Mamprusi social relations of production* One of the major premises of my project is that Africans employed courts and tribunals as tools to not only define and consolidate new relationships, rights and obligations ? but to defend old ones. Accentuation of "custom" was a response by elders and heads of households whose control over junior members was adversely affected by opportunities for increased autonomy afforded to younger Mamprusi as a consequence, of their participation in a wider economic world in which both labor power and goods could be sold as commodities8 The goals of this -facet of the study are to clarify the nature and extent of the transformation of the African economies in the Mamprusi region during the colonial period and to determine the connection this transformation may have had to legal change and the uses Mamprusi peoples made of various legal fora at their disposal* The attempt to more precisely place lav/ and legal change 7/ithin the kaleidoscopic patterns of the Mamprusi political economy should result in a more solid appreciation of the nature of :Tcustomaryst law. My contention is that :}customary1' African 7u ~ legal.systems were the products of the interaction of often competing claims "by Africans about the nature of -their customary ..law with the legal conceptions, strategies and tactics of colonial administrators and j u r i s t s/ -She..development,of cutomary ,,.law during the colonial pericd can test.be ob^er^ed,^. abandoning the definitional debate about the "true" nature;,of. law, in African communities and its comparability with western ^ which has .,often preoccupied legal scholars (filias, 19565 Gluckman, 1%5). Instead, African statements about their customary law should be .conceived of as expressions of not only Juridical knowledge, but -„• . ,. of felt needs as well, ' Evidence about custom^ 1 ^M primarily ..,.. :^idence about the people giving it'and about the circumstances • , ; . , ,, ^ changes which they axe confronting. . it is necessary to ".- + ..inquire into the reasons impelling people to articulate the s, | e n e ts of their customary law in particular Ws, Pursuing this •;;.„<„„ line of inquiry wi ll hopefully-enable me to discern and chronicle p r o c e s S es of l aw ^ .^ ^ ^ . ^ ^^ ±± ^ ,- • - the process of selective understanding by colonial authoritiaB of African claims and selective presentation of these claims by Africans to colonial authorities that insights into laxnprusi : Bocial. history o an be gleaned. Courts and tribunals ware often • the venues in which c la i te fee ^ ^^ ^ ^ ±& ca.es, recording ^i e V a 2 1 o es a d - e o n f ^ of ilfrioa. 71 that scholarly interest in, African legal and social history can iaer-ge, for one can d i s ti irom these records, however muted and distorted it may be, an African perspective. On a broader level? I hope that my project will provoke a general reassessment of the components of "traditional1' or "customary" African ideas and values. Custom is more than practice or a collection of rules guiding behaviour5 it is also the language of legitimation., Definition and acceptance of the customary or traditional depends on prevailing images and models of political authority, on models of relationships within the household;, between the sexes and bet?reeti different classes of people (JlacGaffey, 1970? Ohanock, 1985)« Both .Europeans and Africans bad their mm conceptions and models of African sooietj'. As mentioneds these conceptions were seldom fixed- and they could be altered in response to changing conditions and perceived needso Terence Hanger points out that the European model of "traditional51 Africa was the result of a conscious effort by colonial authorities to establish order, security and a sense of community in their subject populations by means of defining and enforcing what Europeans perceived to be :f customary" African practice ('Hob sb ami and Banger, 1983). $OT their parts Africans realized that getting the colonial government to recognize and accept certain rules and practices as •'customary" was about the - 72 - only'fray certain ^ranps-01 Africans could seek to impose 'their • social aims upon the colonial order ^0-hanock, in.-Hay and Wright 1 9 8 2 ). '•-*'• ••• - '• . - . - . .• II Perhaps the major objective of my project as a work of history is to counter-balance the southern and Asante bias in the historiography of Ghana. Obviously, until a historiography of the north is developed and integrated witB. the literature on . other regions in Ghana, our understanding of the Ghanaian past -rill remain inadequate. So too will recognition of the part played by northern peoples in the historical development of southern and central Ghana, Except for an. occasional ethnographic monograph (Drucker Brown, 1975), research on the Mamprusi is exceedingly thin. As a medium sized member of the congeries of over twenty Precolonial Mossi^omba states in the Toltaic basin, the rusi kingdom shared many of the aalietrt aapaots of social possessed by the la*ge» aad m t t o s o o ^ iy studied polities of Yatenga, Ouagadougou md Dafoiriba (2afeaa» l&ii Skinner, 1964; Stanxland, 1975). Sawooadtad by a f t t l i a t ad - 73 V o l t a ic s t a t e3 or ay acephalous s o c i e t i e s} the Mamprusi were buffered somewhat from t he expanding 3-on.ja and As ante s t a t es to. t he south. Contact v i th Europeans was minimal u n t il t he l a st q. quarter of t he nineteerith century. The decision to extend B r i t i sh a u t h o r i t y - i n to the north was primarily motivated by_ a desire to prevent -the acquisition of t he area by German or 'Jrenoh rivals» In contrast to t he more obviou- s ly wealthy Asante and coastal areas, t he northern T e r r i t o r i es iaad few exploitable n a t u r al resources and therefore offered no immediate r e t u r ns for government expenditure. This does not mean t h at once acquired, the north iras neglected by t he colonial government in Accra, As Flange notes (1984)9 t he inhabitants of -ihe north were subject to c e r t a in colonial pressures and g o a l s, t he mo'st important bein^ t he recruitment of cheap migrant labour to 5forl£tfce mining and cocoa re-.yions to t he south. £% It is apparent tiiat -jhile historians have not been unmindful of these facets of the colonial experience in the . northern Territories, they have yet to intensively examine them. In Eimble's gargantuan study, for example, analysis of northern developments is attenuated by_ an eapiiasis on processes of :tmodernization-s axd nationalisB taking place in the south , 1^63). Stanilandfs book on the Dagomba is of interest - 74 in that it focuses on a northern people, but his analysis remains confined to the realm of polities:-and the impact of "'indirect'rule" upon political elites. The recent dissertation by Davis (1984) is invaluable 'because it _is the only historical study of any length of which I am aware that deals solely with the Mamprusi. His ^orfc, : however, also is confined to elites, and one a&ould question his assumption that because the short-handled hoe, the basic means of ' agricultural production, chafed only slightly during the colonial period, ffiOst of the agrarian Ifenprusi were l i t t le affected by the ' colonial incursion. Bj isolating the means of production as m todepen^ v ^ i e, 3 m ls ^^ t