Native Lands and British Policy page 2
The case for the natives rested upon the following main propositions:
After a struggle lasting for four years, during which Mr. Carey Morgan, the solicitor for the natives, gave his time and his remarkable talents with prodigal liberality, the judgment was delivered on July 29, 1918, and it was of considerable length and not a little obscurity. From the native point of view the following words of Lord Sumner were a severe blow: 'Whoever now owns the unalienated lands, the natives do not.'
As 'unalienated' land meant all land not in the occupation of the white races it would be seen that the sentence quoted above, if it stood alone, stripped the inhabitants of the country - both Mashona and Matabele - of any rights whatsoever in their own country.
Of the three opponents of the Company, the Crown won most, in that legal title became vested in the British Crown as trustee for the inhabitants. The real position was best summed up in the following passage: Their Lordships think it sufficient to say that, except in so far, if at all, as the rights of the Crown are subject to those of the Natives and the Company, nothing has been shown to have happened or to have been done, that would prevent the Crown, if and when the Company's tenure of the administration of Southern Rhodesia determines, from disposing of the lands then remaining unalienated by any lawful means and in favour of any persons or purposes, as it may duly be advised....
The natives came an easy second to the Crown, The white settlers received but scant attention in the judgment. In the first place the natives gained the enormous advantage of finding that the lands they occupied were no longer under the control of the Chartered Company's shareholders but under the direct control of the Crown, for as will be observed from the above passage, Crown rights were subject to indigenous requirements.
There was also the further advantage to the natives that Crown ownership removed from them the perpetual menace of a commercial temptation to cut down their reserves. Prior to the judgment, the Company's claim to the commercial ownership of the reserves meant that it was always in the interest of the Company to make out a case for cutting off the best portions of the reserves, and the natives were thus constantly exposed to the threat of eviction; indeed, whilst the case was proceeding, it had been decided to evict the natives from 6,000,000 acres of reserves and place them elsewhere on 5,000,000 acres.
The Company came off worst, for it completely lost its case. Some of the passages in the judgment might well be handed down to history as a warning to concessionaire companies of the danger of over-reaching themselves. Dealing with the claim advanced by the Company in connection with the Lippert Concession, upon which the Company's case rested, Lord Sumner said that the Company contended that: He (Lobengula) granted to him (Lippert) all the right of dealing -with land of which he had any knowledge, and his ignorance of the nature of an estate in fee ought not to derogate from the amplitude of a grant, which was as wide as he knew how to make it. He reserved at any rate nothing but money considerations for himself, and when the Lippert and the Rudd concessions fell into the same hands, the King had, in substance, sold his country out and out to the Company. Their Lordships cannot accept this argument. As well might it be said that a savage who sold ten bullocks, being the highest number up to which he knew how to count, had thereby sold his whole herd, numbering, in fact, many hundreds.
Lord Sumner, in a passage which, it would be hard to beat, showed the reductio ad absurdum of the Company's claim: It would follow from, the Company's claims that Herr Lippert was, or could become at pleasure, owner of the entire kingdom - for nothing is reserved in favour of the inhabitants - from the kraals of the King's wives to his father's grave or the scene of assembly of his indunas and his pitso. Thenceforward the entire tribe were sojourners on sufferance where they had ranged in arms, dependent on the good nature of this stranger from Johannesburg even for gardens, in which to grow their mealies, and pastures, on which to graze their cattle. The Lippert concession may have some value as helping to explain how and why the Crown carne to confer the administration of Southern Rhodesia upon the Company, but as a title deed to the unalienated lands it is valueless.
That sentence put an end to the claims of the British South Africa Company.
The native areas in Southern Rhodesia were made into reserves and then formally vested in the High Commissioner in South Africa for the use and benefit of natives only. But the High Commissioner is debarred from alienating any of this land except for certain limited purposes, and then only in exchange for other land. The 'limited purposes' are mineral development, railways, and other public works and sites for townships required for the working of 'important minerals.' The lands of Southern Rhodesia held to-day in round figures are as follows: The total area is 96,000,000 acres. The 1,000,000 natives hold as definitely reserved areas nearly 22,000,000 acres. The 50,000 European settlers hold about 33,000,000 with a right to take up altogether 48,000,000 acres. The remainder is held by the Crown for future allotment.
The decision of the Judicial Committee of the Privy Council was followed, as we have seen, by the adoption of a policy of racial separation of land occupation (not ownership), and this brought the native land policy of Southern Rhodesia into harmony with that of South Africa which had been inaugurated by General Botha in 1913. The land policy of South Africa was based upon the recommendations of Sir Godfrey Lagden's Commission, which sat from the years 1903 to 1905. General Botha, then both Prime Minister and Minister for Native Affairs, decided in 1913 to divide up the. 300,000,000 acres of land in South Africa between white, coloured and native races, and he took as the guiding lines of his policy the four main land recommendations of the Lagden Commission:
Under the Botha Scheme the following was the proposed distribution of land in acres:
The Botha Scheme was admittedly provisional, but the haste with which it was driven through Parliament and the premature eviction of natives from land then occupied by them led to a storm of protest.
The alarm and the unnecessary trek of the native squatters led to the infliction of much hardship and suffering. The missionaries, although divided upon the wisdom of the measure according to their individual comprehension of its provisions, but justly indignant at the sufferings caused by the premature application of the policy, did their best to dissipate prevailing ignorance and to mitigate the hardships by direct personal and collective appeals to the Government at home, knowing, however, that little could be done because the Imperial Government had promptly accorded its sanction to the principle of the 1913 legislation.
Although the natives were profoundly disturbed and were indeed showing signs of unrest, they did not oppose the bedrock principle of the legislation, for in their official communication to the South African Government the President of the South African Native Congress said, in an appeal for postponement of the measure and for further safeguards for native rights: 'We make no protest against the principle of separation so far as it can be fairly and practically carried out.'
General Botha endeavoured to assuage indignation in South Africa by giving frequent assurances both to the natives and to white public opinion, and formally declared:
The land policy of General Botha has been described as the policy of the White and Black Checker Board, under which the whole of South Africa was to be divided up into black and white squares. If white people were found in the 'black squares' they were to be moved as in a game of draughts to the 'white squares,' and natives in the 'white squares' into the black areas. Its stages were first the Lagden Commission of 1903-5, then the Botha Legislation of 1913, and thirdly, the appointment of Sir William Beaumont's Commission. To this Commission was allotted the task of recommending steps to give practical effect to the legislation. The Commission sat for two years. When its report was published some months later, it recommended that the land to be placed ultimately in 'black squares' should be increased by nearly 20 million acres of land, and the final result in practice will be that the South African 'black squares' will be 40 million acres for nearly 5 million natives and the 'white squares' will represent 260 million acres for about 1 million whites. A distribution so grotesquely inequitable that it must continue to be a source of justifiable unrest throughout the Union of South Africa.
Kenya to most colonial minds is a challenging issue in Empire policy. The political demands of the Kenya settlers are as simple as they are bold - namely, that whatever changes are made in the Constitution of East Africa the 3,000 permanent British settlers must at all times and in all ways possess a clear and dominant majority in the Legislature over all other British subjects, who number to-day at least 2,500,000.
The land policy of the Kenya settlers is equally simple and was boldly set forth by their spokesman, Lord Delamere: 'If the policy was to be continued that every native was to be a landholder of a sufficient area on which to establish himself, then the question of obtaining a satisfactory labour supply would never be settled.'
To the natives of Kenya the question of land dominates all other issues. There seems to be no doubt that whatever native rights existed have been expropriated. Mr. Ormsby-Gore has affirmed this quite categorically in the Report of his Commission: (Cmd. 2387, 1925.)
'The legal position appears to be that no individual native and no native tribe as a whole has any right to land in the Colony which can be recognised by the Courts.'
This complete expropriation of native rights is not based upon conquest, finds no excuse in 'native rebellion,' for none has taken place, and is not the legitimate fruit of purchase or even compensation.
It was probably due to the stress of the Great War that this expropriation was carried through without any public notice of such a far-reaching measure. In the year 1915 a Crown Lands Ordinance was issued with the approval of the Colonial Office, the effect of which was set forth in the judgment in the Kikuyu Land Case before the High Court in 1921: In my view [said the presiding Judge], the effect of the Crown Lands Ordinance, 1915, and the Kenya (Annexation) Order in Council, 1920, by which no native rights were reserved, and the Kenya Colony Order in Council, 1921, as I have already stated, is clearly, inter alia, to vest land reserved for the use of the native tribe in the Crown. If that be so, then all native rights in such reserved land, whatever they were under the Gethaka system, disappeared, and the natives in occupation of such Crown land became tenants at will of the Crown of the land actually occupied.
The Ormsby-Gore Commission of 1924 was followed by another under Sir Edward Hilton Young, and this Commission was in turn followed by the visit and report of Sir Samuel Wilson. The work of these Commissions was examined and consolidated in 1930-31 by the Joint Select Committee of both Houses of Parliament upon closer union in East Africa. This Committee sitting in the House of Lords was composed of ten Members of the House of Lords and an equal number of Members of the House of Commons. The Committee included the late Lord Stanley of Alderley as its first Chairman, Lord Passfield, Lord Cranworth, Lord Lugard, Mr. L. S. Amery, Mr. Charles Buxton, Sir Robert Hamilton, Lord Stanley and Mr. Ormsby-Gore. There was thus no lack either of talent, experience or authority.
What was the land position of Kenya when the Joint Select Committee was appointed? The best available material is supplied by Mr. Ormsby-Gore in his Report. It is important to bear in mind that the land policy adopted in Kenya must be to a considerable extent the key to any East African Land Settlement. The distribution is as follows:
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