§ LORD OLIVIER rose to call attention to certain recommendations made in the Report of the recent Joint Select Committee of Parliament on Closer Union in East Africa; to enquire what action has been taken or is contemplated by His Majesty's Government in connection with those recommendations, and especially with regard to native interests in land; and to move for Papers.
§ The noble Lord said: My Lords, the Report of the Joint Select Committee of both Houses of Parliament on Closer Union in East Africa is so important a 1000 document and, in view of its practical unanimity, so authoritative, and moreover the body of evidence given in the Appendices, which obviously determined the findings of that Committee, is so illuminating, that I think your Lordships will be glad to have from the Government a statement rather fuller than has yet been given as to how far they have been able to proceed in pursuance of the recommendations of that Committee. A few weeks ago we had a very interesting discussion on the action taken by the Government on one of the principal recommendations—namely, the Mission of Lord Moyne to Kenya to enquire into questions of taxation and finance, in respect of which the action taken by the Government manifestly gave much satisfaction to all members of your Lordships House. In another place a very brief statement was made by the Secretary of State regarding the action taken by the Government, but I wish to ask the Government to-day to give us a little fuller statement, especially with regard to the recommendations of the Committee which will be found in Paragraphs 105 and 106 of their Report.
§ First of all I should like to ask what the Government have been able to do in the direction of the unification of transport and Customs. A very brief statement will be quite sufficient. Further, as to what they have been able to do to carry out the recommendations of the Committee in regard to certain matters which were pressed upon their sympathetic consideration relating to the Registration Ordinance, the cultivation by natives of coffee and other export crops, the hut and poll tax, the problems arising from the use of cattle as currency, and the development of educational, agricultural and veterinary services in the reserves, I do not suppose the Government will be able to say anything very definite, except perhaps a general indication that they have taken action in the matter so that the Government may be better informed.
Thirdly and principally I desire to ask for information as to what has been done with regard to Paragraph 105, subsection (ii) of the recommendations, which runs as follows:
In view of the nervousness among the native population as regards the land question, a full and authoritative inquiry should be undertaken immediately into the needs of
the native population, present and prospective with respect to land within or without the reserves, held either on tribal or on individual tenure. Pending the conclusion of this inquiry, no further alienation of Crown land to non-natives should take place except in exceptional cases with the sanction of the Secretary of State.
I wish, my Lords, to deal with some points arising especially in regard to the Colony of Kenya, but I understand that the noble Lord, Lord Lugard, is going to deal for our benefit with the very far-reaching question, which underlies the whole of our action in Kenya and elsewhere, of the relations between the Crown and the natives of Africa and the various Orders-in-Council or judgments with regard to their land rights. That is a position which I have several times, in my humble and unlearned way, tried to bring before this, House in regard to Kenya and other parts of Africa, and I am very glad we shall have an opportunity of bringing the matter before the House at the present time.
In connection with the question of land tenure, I want to make some observations on the first sentence in Paragraph 106 of the Report, which states:
While the evidence was conclusive that no forced labour is employed by European settlers, or for the purposes of private enterprise, it is not denied that forced labour is occasionally made use of in all three territories on Government work, and further that on still rarer occasions such labour is unpaid.
I shall have to raise some questions on that finding of the Committee—namely, "that no forced labour is employed by European settlers," as a sort of corollary to what I am going specially to discuss. Regarding Kenya I wish to quote from the Ormsby-Gore East Africa Commission's Report, which states on page 28:
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.
That of course is strictly in accordance with the superb judgment by Lord Summer on the British South Africa Company and the Crown in regard to the ownership of land in Southern Rhodesia. I call it superb because it sticks in one's memory.
The noble Viscount said it was perfectly clear that whoever had any rights in chese lands the land did not belong to the natives. That is a phrase which sticks in one's memory and is a very curious basis for our dealings with native
rights in Africa. I shall deal with the paradox of the position later, but the Ormsby-Gore Report proceeds:
This position is summarised in an often quoted extract from a decision of the Kenya High Court in a Kikuyu land case in 1921.
This is the judgment:
In my view 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 Gathaka 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 says:
This judgment is now widely known to Africans in Kenya, and it has become clear to them that, without their being previously informed or consulted, their rights in their tribal land, whether communal or individual, have 'disappeared' in law and have been superseded by the rights of the Crown.
It is true that the Kenya Government cannot alienate land from a native reserve without the previous sanction of the Secretary of State for the Colony, but for various reasons we are doubtful whether in the past this has provided adequate security.
Now, my Lords, with regard to the fundamental provision I am going to appeal to Lord Lugard, who had himself originally made the treaties with these native tribes, as to whether there was any understanding or not on their part that they were to be deprived of their land rights by the treaties made, or under the Protectorate afterwards extended when the East African Protectorate was made, because, as I shall show your Lordships later, the fundamental grievance of the natives is that they never surrendered their land rights and regard it as usurpation on the part of the British Government that it should be assumed they had done so. This position was put in a somewhat clearer form by Sir E. Hilton Young in the Chairman's Report on the Central African Territories. He said:
With regard to land, for example, the areas in which white settlement is to be permitted and what areas should be definitely reserved for permanent occupation by the natives are matters of fundamental importance which should not be decided for one territory without reference to the others. The land question is complicated both in Northern Rhodesia and Nyasaland by the presence of large concessions owned
by the British South Africa Company and other British corporations, the British South Africa Company holding 2,775,260 acres in North Nyasaland and 2,758,400 acres in the Tanganyika district of Northern Rhodesia, and the North Charterland Exploration Company 6,400,000 acres in the East Luangwa district of Northern Rhodesia.
Seeing that the Joint Select Committee dealt with the whole question of East Africa, I hope that any inquiry will also cover the native rights in the other parts of East Africa to which I have referred. Sir Edward Hilton Young proceeds:
On such estates in both Protectorates there arises the difficult problem of dealing with the rights of resident natives—a matter which should be decided on uniform principles, the main object being to secure the title of the natives to the land in the reserves and to give them as firm a right of occupancy as possible in the areas covered by the concessions.
I would like to know whether any action has been taken by the Colonial Office upon that recommendation of the Hilton Young Commission, now about three years old.
The point of the matter which I am raising is rubbed in by the representation made by the Kikuyu Native Association to the Ormsby-Gore Commission in 1924, in these terms:
When the white man first came we did not understand that we were to be deprived of any of our land, nor that they had really come to stay. A small piece of land here and there was sold to a few of the first pioneers and to one or two missions voluntarily by its owners in the time of the Imperial British East Africa Company. When the British Government took over the administration of the country we were still unaware that our possession of the hind would be questioned or challenged.
Then from about the year 1902 increasing numbers of white men arrived and portions of the land began to be given out to them for farms, until large areas in Kyambu, Limoru, Kikuyu, Mbagathi, about Nairobi and at Nyeri and beyond had been disposed of in this way. These lands were not bought from their Kikuyu owners, and any compensation they received for land actually under cultivation only, and that at an extremely small rate per acre, was quite inadequate. The natives on them had either to become squatters on what had been their own land or else move off. Many of them to-day are squatters on up-country European estates and many have become wanderers moving from one estate to another.
§ Very shortly after that Report was published, I raised the point in this House, and I asked about these people whose land had been taken away from them 1004 through alienation to European settlers. I was put off by such answers as that there were no natives in the places settled, because the Masai had cleared them all off. I have never been able to get anything more definite than that statement at that time. It was sometimes said that no natives were there because of severe drought. I raised the question as early as 1925, and asked the Government what they were going to do about it. I raised the same question again when the Rhodesian Land Commission reported. I asked the Government: What are you going to do about the natives who used to have land on the farms granted to British settlers, and whom the Crown are now charging rent for holdings which were formerly their own freeholds? I never got any satisfactory answer. There the matter rested until about three years ago, 1928 or 1929, when I raised the question again in this House, and I again got no satisfactory answer because Lord Lovat, who was answering for the Colonial Office, had not been briefed upon the subject, and simply stated generally that he had the assurance of the Governor of Kenya that full provision was made for all the needs of the natives, present and future, in the Colonies. I had to be content that that covered what he called the needs, and I called the claims, of the natives, but it did not satisfy me. I had, however, no further evidence to go on.
One of the results of this Select Committee, and of closer investigation made by the Government of Kenya into native land rights, is that we have very strong evidence fully supporting all the claims made since 1924 of the stealing away of native lands and granting them to Europeans. That is the point that I wish to bring to a head and to ask the Government what they are going to do about it. Some part of the extracts of evidence I will read to your Lordships. There is a very valuable and useful Report drawn up under the directions of the Kenya Government on native land tenure in Kikuyu and Kavirondo. They are very useful documents and show an elaborate and very reasonable and complete system of law, with regard to which the Commissioners themselves say:
Throughout the Kikuyu province it is a common thing to find individuals cultivating and sometimes living on land belonging to another clan or sub-clan. This is more
common in the Kiambu district than elsewhere by reason of the fact that there are a great many individuals who once were members of land-owning sub-clans but whose whole holdngs of land (secured by native law) were alienated to Europeans and who could not acquire new holdings since they could not move on beyond the reserve boundaries into unoccupied forest land.
I will read a further paragraph, Paragraph 58:
There are far more men in one particular district, the Kiambu district, occupying permissively and without native right, land on the holdings of other men who have a, tribal right because a very large number of native holdings were alienated to Europeans in the days before reserve boundaries were fixed, and then a great many natives who had rights on the holding of their clan on the land alienated suddenly found themselves homeless and with no land which they could cultivate in their own right.
So that it is perfectly clear that neither the drought nor the Masai have entirely cleared these, districts. Paragraph 24 says that within, the present boundaries of the native reserves overcrowding has been caused, and the disturbance caused by European settlement has undoubtedly increased the difficulty. Some clans claim that the whole of their holdings were lost to them by being alienated by Government to the settlers.
§ It appears from these very interesting Report's that, natives dispossessed from their property in their own clan holdings, which are their own individual or family property, cannot acquire, or have very great difficulty in acquiring, similar rights in the holdings of any other clan or sub-clan. They can only get land to cultivate on sufferance and as a favour. They are called Ahoi, which is the plural of Muhoi A Muhoi means an "asker"—one who comes to another and asks permission to cultivate part of his land, and obtains it purely on the basis of friendship. The negotiation begins quite in the manner of civilised communities on the basis of standing a drink. The Muhoi takes beer to the man whom lie wishes to ask for such permission; the latter, if agreeable, consults the other elders of his clan or sib-clan, and if they consent ho shows the Muhoi whore to cultivate. Very often a man Cannot get sufficient land space for his cultivation from one individual, but becomes the Muhoi of several people concurrently.
§ He cannot acquire any higher right by purchase unless it is offered to him. It is 1006 a great, insult to offer a native proprietor to buy land of him, even if he is a member of the same clan. Presumably such an offer would be held to indicate a suggestion that the landowner was hard up. We can remember when it was considered a breach of good manners on the part of wealthy Americans to offer money to the proprietor of an ancient English estate. The Kikuyu has still that primitive notion of etiquette.
§ In early days, however, the Report says, a Muhoi could generally, when he was rich enough, manage to find a willing seller. Nowadays, however, there are fewer offers to sell land, and so Ahoi tend to stay on indefinitely as such. A Muhoi cannot build on the land allowed him for cultivation without special permission, which requires the consent of the clan or sub-clan. Further, in the Dagoretti district and in the neighbouring Kiambu districts thousands of Kikuyan families were dispossessed by the grant of their lands to Europeans, and it is now impossible for them to obtain by purchase lands for cultivation or for building houses for themselves elsewhere. That is very much more substantial evidence—it is an absolutely irrefutable statement—of the grievances which I have been trying to bring before your Lordships for many years than I have ever had before, and I feel sure that such important statements as were brought before the Joint Select Committee must have impressed them when they made that recommndation that a very thorough and searching inquiry should be made into the adequacy of land provided for natives.
§ Now I go further and I say a memorandum has been submitted to the Colonial Office by the Kikuyu Central Association. I have it here. A list has been compiled of the number of persons who have been expropriated from land in Kenya alienated to Europeans. I would only say that this list has been drawn up with a view to substantiating the general statements made. This list specifies eighty-two distinct expropriations of clan holdings, which are named, affecting 7,832 individuals and their families in different settlements, and a total area of 88,746 acres. That is a document which surely must be enquired into in connection with the land inquiry. I am not prepared to say that some of the statements may not be exaggerated, but 1007 they cannot be exaggerated to any degree that would leave the residuum of truth entirely negligible. I simply refer to that statement, which I know has been put in, and part of the correspondence which I shall ask for is any Report which has been received from the Government of Kenya upon it. I do not ask for it today, but that is one of the Papers that I move formally for, and I hope that at some time it will be laid, because that will be a very crucial demonstration.
I wish to quote some part of the evidence given before the Joint Select Committee. Canon Leakey, speaking of the squatters who have been evicted, entirely supports the statement I have been making. He says (page 251):
Neither can these squatters be told to go back to where they came from. You cannot 'go back' to a place you have never been in before; yet we hear on all sides 'they can go back to the reserves.'
He tells the Commission that they do not come from the reserves; they come from Europeans' lands. Then he says:
It seems to me absolutely imperative that before any more land is alienated to whites—
and this is a point which the Committee took—
large portions of Crown land should be set apart for the squatters who will most certainly want to come back to non-European owned land, if not for themselves, probably for their children.
One of the recommendations of the Committee was that no further alienations should be made. I see already in the East African Standard that a motion is to be moved at the Convention of Associations strongly protesting against any such policy, and saying it is ridiculous to raise the question of reserves again. It says a Committee appointed by the Government has said that the reserves are ample, and that ought to settle the matter; and the Convention of Associations apparently intend to press on with the question of further settlement. They say that the Government should not suspend the alienation of fresh lands. That is a point which, members of the Select Committee will perhaps remember, was gone into by the Committee, and Sir Humphrey Leggett was asked: "What are the reasons why the white settlers are so anxious for the alienation of further land not to be restricted?" He gave three reasons. The first was that the
Government required revenue. If I were to give the second and third reasons I should be told that I spoke bitterly and cynically, but I should like to refer members of the Select Committee to the reasons which were given for the settlers in Kenya desiring further alienation of lands, because it throws a light on such resolutions as are now put forward, traversing that proposal that no further alienation should be made. Sir Humphrey Leggett's evidence is on page 353 of Appendix II. I hope that no attention whatever will be paid to that protest, if the protest is made, and that this necessary procedure of suspending the alienation will be adhered to.
§ Further, in support of what I have been saying, Mr. Maxwell, the Chief Native Commissioner, entirely endorses the statement that many natives have been evicted or have been compelled to remain as squatters upon their own lands. He says there is a great congestion in part of the Kiambu native reserve, and the native reserves of the Bunyore and the Maragoli are very overcrowded, and he attributes it largely to the same cause as Canon Leakey had attributed it to. Chief Koinange Mbiu, who gave evidence before the Commission, was very definite on the point. He repeats the point that was made before the Ormsby-Gore Commission, that the British Government did not fight the natives and occupy the land as the result of conquest, but that they made treaties with the natives to protect them and to take care of them and their properties. He therefore asks that the Government may buy some of the European farms and restore them to the natives who have not sufficient land. It is a fact, he says, that many natives are roaming about without a place to live in. Some land was sold to Europeans while the natives were still residing on it, but these native residents are now called squatters and must work for the present European owners, otherwise they will be driven away from what was their own land.
§ Here is a very special case which has been raised several times within my knowledge. It is stated that Chief Koinange says that in the Kiambu district from about 1911 to 1914 native land called "Gathaka"—that is, owned land under native law—was taken by the 1009 Government and sold to Europeans. The Government promised the natives that it would compensate them to the amount of Rs.50,550 for the land, but they have still not yet been paid. That same claim is made in the petition from the Central Native Association—that there was a pledge to pay Rs.50,550 for certain land and that this has not been paid. I hope that some definite inquiry will be made by the Colonial Office into that assertion which is made by the Chief and by the Association. Chief Koinange goes into sundry other matters of jurisdiction and So on, with which I do not want to deal. But I do want to deal with this point which he makes, that there has been an actual eviction from the land of natives who had a very well-ordered and established native system of land tenure, which, if you examine it, is a very reasonable and sensible scheme of jurisprudence administered by its own officers.
§ The Chief says that the trouble is that a number of the actual clans who were land-owning families had their land alienated over their heads, with them on the land, and eventually pressure was brought to bear on them to make them leave it. That is why they have had to go away, far from their own country, as squatters. Chief Koinange says that it is not the Government who are there at the moment who are responsible for this, but it was the Government which was in the country at the time when Mr. Ains-worth and Mr. Hobley were the Commissioners. But the situation remains because no native has any land rights in Kenya. The land has been granted by the Crown en leases of 999 years to Europeans, free of encumbrances. The Europeans have taken the ground from the Government free of all equitable claims of occupants and free of all encumbrances whatever. If a European buys land and there are these natives upon it, the land is absolutely his land, but there are these native squatters on the land. He may allow them to live upon his land, but he may not treat them as fixed tenants. He may give them as a favour a certain amount of land to cultivate, but he may only do so upon that beneficent principle which General Hertzog is anxious to establish all over South Africa—that the native may only be there as a labour tenant under a legal obligation to labour on it for 180 days a year, subject to legal penal- 1010 ties of fine or imprisonment if he does not comply with that obligation of 180 days labour a year.
§ If he is on Crown land he may be able to graze his cattle on payment of so much per head. If he is on the land of a settler, as appears from the evidence, he may in some cases run cattle on that land which is subject to no encumbrances. The settler allows the native who comes back to his old cultivation to run cattle on that land on the condition of the settler himself having all the milk for his dairy. That is why I refer to this statement in the Select Committee's Report that they were satisfied that there was no ground established for any suggestion of forced labour for Europeans in Kenya. But if you take a man's land and give it away to somebody else, and he has to go away from it, and there is no place for him to go to because he cannot buy land as the Government has made no provision for him buying land, and if you say to him: "You may stay where you are and grow maize and potatoes or run your cattle upon the land on condition that you work for the man to whom the land has been given for 180 days a year at wages of about 4d. a day or, perhaps, 4d. a day and rations," I ask noble Lords on the Government Front Bench, I ask the noble Lord, Lord Cranworth, this question: Do they consider, if you take away a man's land and give him no alternative to living on that land except that he shall work for the new owner for 180 days a year, is that or is it not forced labour? It is a perfect equivocation when you have taken away people's land and have not provided them with compensation or with anywhere else to go to, and say to them: "You may stay on that land, but it is on condition of your labouring under penal sanction for the present owner of that land," to contend that that is not forced labour. That is one of the things I want further pursued.
§ I do not think I need elaborate my case further upon that. I have here many quotations showing that great numbers of natives have been evicted from their land in this manner. What I want to ask the Government is, what is the position in Kenya, in Nyasaland and so on, of natives in regard to the land, and what is the principle on which they are going 1011 to proceed to deal with them? If for the moment we take account of native law and custom, all of these natives would have equitable claims upon that land. It is, no doubt, a very good doctrine to say that the King is the owner of the land. But we know that the land is encumbered with all sorts of equitable tenures upon it of which the British law takes notice.
§ I have a great admiration of the work done by the noble Lord, Lord Lugard, throughout Africa in regard to what is known as the indirect system of government, because that starts with the view that where you have a community which has sane and intelligent customs and laws, it is the most stupid thing in the world to try to thrust the ram-rod of your British law into those works and appoint a head man to administer it. If you read those most interesting reports on the Kavirondo and Kikuyu land systems you will see that those land systems are very well thought out, very equitable, and very sensible, for the purposes of the tribe which has to live upon the land. Everybody in Africa has to have land to cultivate. In these over-crowded reserves enormous numbers of land cases arise. In fact, I saw once in a Report of the Kavirondo Association that they were asked how their men were employed and they said that a large part of the time of the men was taken up in deciding land cases. As they have no written records, and no written law, and as this is a matter for those learned in the law and having a good memory, a great deal of palaver is obviously necessary to deal with land cases. Still it is a good and intelligible system; it is a well established social system which, it seems to me, it would be the greatest mistake in the world to attempt to destroy or overrule. It may be necessary in some cases slightly to modify it in order to introduce the power of making permanent buildings and so on, and those may be matters which will have to be dealt with by the Board that is to be set up under the Native Trust Regulation Law.
§ I now pass from the question of the rights of the expropriated natives to the more general question, just touching on the point, which Lord Lugard will deal with, of native administration. One of the great complaints in connection with land, 1012 as in connection with other matters, is that in appointing authorities over tribal communities the Government have not had regard to the native custom with respect to the appointment of a Chief. They have appointed head men and other paid officers, and introduced them into the administration of the tribes. The head men so appointed are the paid servants of the Government, and, therefore, loyal to the King and do what he tells them. When the head man does what the Government tells him in regard to land cases he is constantly complained of, it being said that he acts contrary to native law. We ought not for a moment, in any action we take under the Land Trust Board, to try to interfere by executive action from above with the established land law systems of the native tribes which appear to me, I am bound to say, to be extremely well adapted for the maintenance of the tribe, and to prevent the starvation and pauperism which threatens the natives everywhere.
§ That brings me to the question of the Native Land Trust Ordinance itself. I am not going to deal very much with that. We have legislated for the reserves by placing them under the trusteeship of a governing Board constituted of the Governor and certain white officials, and certain—four I think it is—white residents. That is a Board constituted by legislation. We do not know what the future of Kenya is. I suppose I ought to regard with confidence the future of Kenya under the conviction that the Crown and the Colonial Office will not relinquish control of those affairs, but will have in addition rights of the sort granted by local Ordinance. In view of the experience which we have had in South Africa of what has happened to the natives there it seems to me that it would foe a most terrible breach of trust. I am of opinion as a matter of principle—I am quite sure Lord Lugard will take this view—that all these dealings with native lands on behalf of the Crown ought to be made by order of the King in Council, or by some similar Ordinance, and not be left to local legislation. If we are going to maintain our position there, that, I think, ought to be done.
§ At the present time you have a Land Board tribunal which contains no native upon it at all. There is a provision in the law that the Governor may, when he is satisfied there is any native of sufficient 1013 ability, appoint native members to the Land Board. Such of your Lordships as heard the native representatives of Kenya before the Select Committee would admit, I am quite sure, that those natives—and I am quite confident there are a great many other natives—are absolutely well qualified to sit upon a native Land Board dealing with native affairs, and obviously very much better qualified than most of the people in Kenya who have had to do with native affairs hitherto. I think the time has Rome when the Secretary of State should insist that the Native Land Board should have upon it native representatives.
§ There is only one other matter that I am going to deal with. There is no definite report on it, but the Committee in regard to the Report suggested that, a further inquiry should be made into education. This matter to some extent arises in connection with land and it is only so far as it concerns land that I am going to deal with it. The whole question of African education is one that deserves a full debate to itself, and it cannot be properly dealt with to-day. Complaint is made now that a number of schools have been closed—schools which were founded by the missionaries. The natives say: "We made these grants to the missionaries, not in fee simple; we gave them the land to use for the purpose of schools. The schools have been closed. The missionaries are not now carrying on the schools, although we gave them the land for that purpose and built their schools for them. Now that the schools are not being carried on we ought to have the land and the buildings back again." I think that is good equity. The difficulty appears to have arisen in this way. There seems to have been a sort of triangular quarrel. First, some of the missionaries said: "We do not like your native puberty customs, and will not have your children in school unless you abandon them." The natives said: "Our puberty customs are our own concern. Our children come to your schools to be taught, and we are pleased that you should teach them. Go on doing so." But the missionaries in some cases tried to exercise a religious censorship, and said: "We will close the schools." On the other side, the Government said: "We do not approve of the curriculum in your schools, and, therefore, we will not give 1014 you the grant." As a result, certainly more than a dozen schools have been closed either by the decision of the missionaries or very much against the wish of the missionaries; certainly in all cases against the wish of the natives.
§ The natives granted the land for these schools. They say that they did not give it, but that they granted it for the schools, and, having granted the land for the schools, and the schools being no longer carried on either by the Government or the missionaries, they say the land ought to be restored to them. That is one point in connection with land which arises in regard to the subject of education which I hope will have some attention. I have kept your Lordships longer than I intended to do, but a shorter time than I should have taken had I thought it necessary to buttress my case with further evidence of which I have a great mass at my command. The evidence goes to prove that those natives were expropriated from their own property, from what under any equitable system would have been recognised as their property. They have been expropriated without compensation, their land taken away from them, and themselves left where they could not get other land, so that they have been compelled to stay upon the land as bonded workers for proprietors. That is an evil which I am quite sure the majority of the Select Committee must have recognised. I hope the Government are going to deal with this matter in Kenya and also in the whole of Rhodesia. I beg to move.
§ LORD LUGARD
My Lords, the Motion which stands on the Paper refers primarily to the recommendation made by the Joint Select Committee of Parliament which the noble Lord has just read to you. The nervousness which was referred to in that recommendation was attributed in the Report of the Parliamentary Commission which visited East Africa under Mr. Ormsby-Gore as long ago as 1924–25 to a feeling of insecurity of tenure, and to expropriations of land on behalf of Europeans. These alienations of land were effected by virtue of principles and policies not peculiar to Kenya, for the justice of which the European settlers were in no way responsible. They quite naturally were anxious to acquire land on the best terms they could. In this connection an article to which prominence 1015 was given in the leading East African paper was sent to me recently, in which the writer declares that the number of squatters on white estates is a growing danger to the future of European settlement.
Speaking from the point of view of the settler, he says that "the large majority of farmers dare not do away with squatters for fear of a dearth of labour." Hitherto the system had been beneficial to the settler, but it was now a menace to the closer settlement project. He emphasises the difficulty of dealing with this large and continually increasing number of detribalised Africans, established in the very centre of European estates, whose numbers, he asserts, are very greatly in excess of the registered number of 133,000. The noble Lord, Lord Olivier, said that there is no longer any room for them in the reserves. In South Africa it is estimated that there are over 1,600,000 of such squatters apart from the urban population, for whom there is no room in the locations. Kenya would seem to be tending towards the same dilemma. This local aspect of the question has been dealt with very fully by the noble Lord, Lord Olivier, and the Colonial Secretary announced in another place the other day that an inquiry is in contemplation regarding it, but I would remind your Lordships that of the nine British Dependencies under the Colonial Office in Africa only two—Kenya and Northern Rhodesia—have adopted the system of native reserves which obtains in the Union of South Africa.
The recent legislation in these two territories for the creation of a Native Land Trust Board applies only to these reserves—a comparatively small part of the total area of those countries. The question remains as to native land interests outside the reserves, and in Dependencies where there are no reserves. The Ormsby-Gore Commission were not content merely to discuss the adequacy of the reserves. "It is essential," they said, "in the interests of both native and non-native that there should be some clear definition of rights." Emphasising the explicit terms in which in the White Paper of 1923 His Majesty's Government had declared its trusteeship for the native races, they recorded the view thatit is essential both to satisfy the apprehensions of the natives and to ensure justice 1016 that the representatives of native interests should be given without delay a legal status in regard to the tenure of native lands and the terms upon which the Crown holds native lands.It is to this wider aspect of the question of native land interests that I desire as briefly as possible to ask your consideration, for the decisions which are arrived at in regard to Kenya must necessarily indicate the principles of British policy in the future in other African Dependencies. I do so with some reluctance, for I am conscious of my inability to handle so difficult a subject—especially in its legal aspect.
The late noble and learned Viscount, Lord Haldane, delivering the decision of the Judicial Committee of the Privy Council in what is generally known as the Swaziland case in 1926, described the judgment as one of "far-reaching importance," since it dealt with "the true character of the native title to land throughout the Empire." "Land," he said, "belongs to the community" whose title "generally takes the form of a usufructuary right … and may be extinguished by the action of a paramount Power which assumes possession or the entire control of the land." The assumption of possession and the extinguishing of native rights may, it seems, be effected either by an act of State or by the exercise of powers under the Foreign Jurisdiction Act, 1890, irrespective of any treaty or pledge to the natives. "This method of peacefully extending British dominion," as Lord Haldane expressed it, is unquestionable in law and cannot be challenged in any Court. There is no mention of compensation.
The extinction of native rights in Swaziland would, as I have said, be irrespective of any treaty or pledge made to them, for the judgment explicitly says that any pledge made in the Swazi Convention of 1924 cannot legally interfere with any subsequent Order-in-Council. The pledge had, however, also been recorded in Clause 14 of the Schedule to the Act of Union of South Africa, which the noble Earl, Lord Buxton, quoted in the debate in this House on July 11, 1925—that is to say, prior to this judgment. It declared thatit shall not be lawful to alienate any land in Basutoland, or any land forming part of the native reserves in Bechuanaland or Swaziland from the natives inhabiting those territories.1017 The inclusion of this declaration in the Act confers, I am told, a statutory right which cannot be revoked by an act of State, but only by an amending Statute against which the natives would have a light of appeal in the Courts. It is not clear to a layman whether the interpretation of that clause in the Act of Union by the Privy Council differs in any way from that assumed by Lord Buxton—namely, that the land rights of the Swazis in their reserves are guaranteed in perpetuity, even if Swaziland is transferred to the Union, or whether the judgment of the Privy Council has in any way modified the protection which it was assumed was given by that clause.
The case of the Masai tribe versus the Attorney-General of Kenya in May, 1913, when Kenya was (like Swaziland) a Protectorate, also rested on the alleged breach of a pledge by Government, and t was ruled by the High Court that since the status of the inhabitants of a Protectorate in relation to the Crown is that of protected foreigners, the Court could not interfere even if a wrong had been done. The agreement made with them by the Government could, like the Swazi Convention, be set aside by an act of State. It follows that what is frequently described as "the usual clause" in a treaty or convention by which the rights and property of the natives are safeguarded is really practically valueless as a safeguard. Later, when Kenya had become a Colony, some natives of Kikuyu claimed possession of certain lands in the area reserved for the use of the Kikuyu tribe by proclamation under the Crown Lands Ordinance, 1915. The High Court ruled that by this Ordinance and the Kenya Order-in-Council, 1921, no native private rights had been reserved, and the natives had become tenants at will of the Crown and were not entitled to the possession of the land claimed.
It appears therefore that equally in a Protectorate where the status of the natives is that of "British protected persons" or protected foreigners, as in the Swaziland case, to which the Privy Council decision referred, and as in the Masai case, when Kenya was still a Protectorate, or in a Colony where the natives enjoy the legal status and rights of British subjects, as in the ruling of the High Court to which I have just referred, "no individual native and no native tribe 1018 as a whole" (to quote the words of the Ormsby-Gore Commission) "has any right to land in the Colony which can be recognised by the Courts"—unless, I presume, it has been conferred upon them by Statute. Largely, no doubt, in consequence of the Reports of the Ormsby-Gore Commission and of the Hilton Young Commission, which have been quoted by Lord Olivier, steps were taken to protect the interests of the natives in the land set aside as reserves in Kenya by setting up a Land Trust Board, but as I have pointed out, it is only in Northern Rhodesia and Kenya that the system of reserves has been adopted in Crown Colonies.
The noble Lord has already dealt with the subject of these Land Trust Ordinances, and in regard to them I will only ask whether by these instruments any legal title to their prescriptive lands has been conferred upon the natives, or whether they are still, even in the reserves, only tenants at the will of the Crown? Some doubt appears to exist in this matter, since Mr. Thomas, a former Secretary of State for the Colonies, went so far as to describe the Kenya Land Trust Ordinance when it was discussed in the House of Commons, as "eyewash." In all the cases I am discussing there is no question of voluntary cession, and indeed it may, I think, be said without fear of contradiction that no ordinary native Chief has any power under native law to cede to any person the community rights in land. The claim of the European Powers to confiscate or extinguish native rights and "to take possession or entire control of the land" is presumably based on the right of conquest, or alternatively upon what The Times calls "protective processes," and which I may perhaps be allowed to call "potential conquest"—namely, assumption of sovereignty by virtue of ability to suppress by superior force anyone who objects to the assumption. African tribes are ready to sacrifice their lives in defence of their land, but they cannot stand up against aeroplanes and modern weapons.
Professor Berriedale Keith in his book on "The Constitution, Administration, and Laws of the British Empire," published in 1924—a work which is, I believe, accepted as a reliable authority—asserts that "it is a fundamental principle that British political sovereignty or protection does not mean the confiscation of 1019 native land interests." There was a previous decision of the Judicial Committee bearing on this subject, delivered by the noble and learned Viscount, Lord Sumner, in 1919, known as the Mata-bele-land case. Recalling that Lord Derby in 1885 and Lord Ripon in 1895 had declared that Great Britain does not claim land rights in a Protectorate, he said that these statements referred to territories "in which the existing sovereignty of Native Chiefs continued and was respected." Where land is tribal or communal the tribes may on the one hand, he said, beso low down in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions and legal ideas of civilised society … On the other hand, there are indigenous people whose legal conceptions, though differently developed, are hardly less precise than our own … and are no less enforceable than rights arising under English law.In conclusion he summed up by deciding that "whoever now owns the unalienated lands, the natives do not." The recognition of the right to hold tribal lands would therefore appear to depend on an opinion as to the degree of civilisation to which the holders had attained. Would not a difficulty arise as to who is to give that opinion on behalf of the Crown? It could hardly be given by the person who proposes to take possession of the land.
These decisions of the Privy Council were to some extent based on the nature of African land tenure as described by Lord Haldane, but we have it on very high authority that in a single province, even in a single tribe, it may vary greatly, and in some cases individual ownership has been established. If information is required as to the nature of African land tenure in any particular district it can best be obtained from institutions engaged in African research, there are at the present time projects—chiefly with the aid of American money—for intensive study of the subject. The term "ownership," for instance, may even in this country be subject to restrictions and easements, and community ownership in Africa is none the less real because it may be qualified as regards the user by concurrent restrictions and obligations. Another term which is frequently used in these decisions is "an act of State," and it is important for the layman to realise what is meant by the 1020 term. It is clear that an order by the Governor as the King's representative in the exercise of the Royal Prerogative constitutes an act of State but that in practice it should have the covering approval of the Secretary of State. The Ormsby-Gore Report states, however, thatcases have occurred where a Governor.… has either not reported his action to the Secretary of State, or has reported it so long afterwards that it was not really practicable to reverse the action he had taken.Mr. Amery, speaking in another place, said that "there had been a feeling that the consent of the Secretary of State had been given from time to time perhaps more readily than might be desirable."
The method by which native land rights can be extinguished seems in West Africa to have taken the less usual form of a Statute instead of an Order-in-Council. In the Northern Nigeria Lands and Native Rights Ordinance of 1911, which was, I believe, drafted at the Colonial Office and enacted by order of the Secretary of State, Mr. (later Viscount) Harcourt, all lands whether occupied or unoccupied, and all rights over the sameare declared to be under the control and subject to the disposition of the Governor, and shall be held and administered for the use and common benefit of the natives of Northern Nigeria, and no title to the occupation and use of such lands shall be valid without the consent of the Governor.The lands which were at that time more immediately under consideration were those of the Moslem Emirates and the occupiers enjoyed such title as they might possess under the Maliki code of the Koranic law, which was the lex loci. No exception was made by the Ordinance in regard to town properties, the undisputed private property of individuals, or regarding Wakf lands (namely, religious endowments) if any such existed.
It repealed the previous Statute which had excluded from the definition of "Public Lands" (namely, lands which could be dealt with as Crown Lands) any land in actual occupation under any local law or custom. Surely the rights of these people under Mahomedan law and under the pre-existing Statute were, as the noble and learned Viscount, Lord Sumner, has said, not less enforceable than rights arising under English law? The effect of this enactment was, however, to confiscate all these lands, even though 1021 legally occupied by the same family for generations. In order to obtain a legal title the occupier had to obtain a right of occupancy from the Governor, tenable far seven years (a period too short to plant cocoa or other permanent crops), and subject to a land rent payable to the Government. It may be said that the Governor was by law bound to dispose of the land for the benefit of the people. Such a phrase is capable of wide interpretation, and it does not alter the fact that under the original law an occupier had no legal title unless conferred by the Governor, and could be dispossessed at will without compensation. The people were however ignorant of the fact.
There was an irony in these results, for the intention of the framers of this law, us expressed in the preamble, had been lo protect native rights. The strict letter of the law has never, I think, been enforced, and it has since been modified and enacted in Tanganyika, where the Governor made a formal pledge to the natives that communal land occupied in accord with native law would be rent-free and the occupier would be, "treated exactly in the same way as if he had a written title such as Europeans have." Such a pledge has, however, been shown to be of little value as a guarantee. The appointment of a Committee to determine now this Ordinance could be applied to other parts of West Africa gave rise to wide-spread apprehensions among the natives, and subscriptions wore set on foot for deputations, to England, and the Committee, after taking an immense amount of evidence, no doubt at considerable cost, was dissolved during the War, and the matter dropped. For in these territories British policy had gone to the other extreme, and the various Governments do not, I believe, own a foot of Crown land, unless won by reclamation from the sea-bed.
In the case of Tejani versus the Government of Southern Nigeria in 1921 (known as the Apapa case), in which the Privy Council judgment was also delivered by Lord Haldane, it was ruled that native rights in land had been recognised at the time of cession, and also by a local Ordinance, which, for the purpose of conveying title to land acquired by Government recognised the fee simple to be vested in the Chief. The land in question was a treacherous swamp, which had never been inhabited or cultivated, and 1022 had been reclaimed and solidified at very great cost by the Government for a railway terminus, before it could be utilised. The appellant succeeded in his claim for compensation and the public revenue was mulcted in costs. But it would seem to a layman that the native rights had been no lese protected in Northern Nigeria until cancelled by the Statute to which I have referred, though rights of ownership, as Lord Haldane said, are undisturbed by change of sovereignty.
I should trespass unduly on your Lordships' patience were I to discuss the apparent anomalies which exist in other Dependencies in Africa—especially in Uganda and Nyasaland—in regard both to native rights in land and as to the question of rights in minerals. Your Lordships will agree that the principles governing native interests in land throughout the Empire ought to be clearly understood by all who administer our Colonies, but the cases which I have quoted will I think serve to show that there is some confusion in the minds of laymen, and that is the reason why I am asking, as both the Ormsby-Gore and Hilton Young Commissions have already asked, for some definite and clear exposition of British policy, and of the principles to which His Majesty's Government desire to give effect in Africa. The law as it exists has been laid down in these decisions of the Privy Council, the highest and final authority in the Empire. The larger question remains: Does the law and practice conform to the intentions and desires of the British democracy I Should a trustee be able to extinguish the rights of his ward without compensation, with the object in a Protectorate of peacefully extending British dominion? If we may judge from declarations made from time to time by the Government of the day in White Papers, and by members of every Party in Parliament, including members of the present Government, and from the public Press, it is very doubtful whether it does.
The Times, for instance, in a long leader, observed that the Swaziland Judgment "calls into consideration that principle of equitable treatment and honest dealing which lies at the root of the British system." Commenting on what it described as "the doubtful interpretation of the Foreign Jurisdiction Act" and the alternative of an act of 1023 State, which even if a wrong has been done cannot be questioned by the Courts, it recalled the strictures passed by Lord Watson in the Pondoland case in 1897. The assertion by the High Commissioner of South Africa at a recent session of the Mandates Commission, that under British law land rights could be extinguished by an act of State without compensation, was received by the members of that Commission with incredulous surprise, and the Ormsby-Gore Commission apparently found it difficult to reconcile the ruling of the High Court with the principle of trusteeship, for it would seem that the law as it exists admits the right of the trustee by an act of State to confiscate the interests of the ward, without compensation and without right of appeal to the Courts, or at any rate that it cannot restrain him from doing so.
The right of resumption for a public purpose with compensation fixed by arbitration is of course unquestioned; it applies equally to non-natives and to natives. The right of the Crown to dispose of land which is not in beneficial occupation by natives is, so far as my information goes, recognised by all foreign Powers. Should not the principle apply without racial discrimination to all land not effectively occupied, as Mr. Runciman contended in the House of Commons in the debate of July, 1925? The decision whether land is or is not in beneficial occupation must rest with the Governor-in-Council, but it would seem desirable, before appropriating, as Crown land, land supposed to be vacant, and disposing of it by sale or lease, that a competent authority should certify that it is not in beneficial occupation, or required for reasonable expansion of the population in accordance with the declared policy of Government.
Should not natives have a title to the lands they occupy equally valid in law with that of non-natives, instead of being tenants at will of the Crown, liable at any time to be dispossessed by an act of State without right of appeal, if unprotected by Statute, or even, it would seem, liable to be dispossessed by the repeal of any statutory protection they may possess, against which in practice it is difficult for them to appeal? Would it not be possible in the case of ignorant tribes—I am not referring only to reserves—that the legal title to community 1024 or family land should be vested in a single and competent authority—as for instance the Chief Justice—who would be charged to act as legal trustee? Where land is held on individual tenure as in the case of personal property in a Moslem city, or even in the case of family tenure as in the Gathaka system among the Kikuyu, should not registration be recognised as prima facie proof of individual—or even of family—ownership?
The sale or lease of tribal lands (unless expropriated for a public purpose) should only be allowed in exceptional cases, and the assent of the whole community should be verified and not dependent on the word of a nominated or possibly venal Chief. In short, while the Crown should have the right of disposal of all lands not in beneficial occupation, should not all remaining land be subject to the same law and practice, and should not the occupiers have the same legal rights without distinction of race? By the right to dispose of waste lands and of minerals (which generally speaking have been discovered and can only be exploited by foreign agency) the Local Government is enabled to raise revenue which is wholly spent for the public good; without these resources expenditure must be met by taxation, direct and indirect, and all taxation restricts purchasing power and trade.
The use and disposal of the land is intimately bound up with the whole social fabric of an African tribal community. The authority of the Chief is to a great extent based on his position as custodian and guardian of the land. The land is of vital importance to a people whose lives and actions are controlled by a belief that they are in constant contact with the spirit-world; for the place where their ancestors lie buried is tenanted by their spirits, and those spirits form, in the conception of the African, an integral part of the living community. Their approval or disapproval is the basis of the moral code, and of the sanctions by which law and order are maintained.
You cannot therefore transfer at will Africans who hold these beliefs from ancestral to new lands where they would be deprived of the guidance and control of the ancestral spirits. A man who has been evicted from his land, or become a squatter on the estate of a white man, can only, we learn, be received as a 1025 tenant ex gratia on the family land of friends, liable at any time to be turned adrift as the pressure of population increases. He becomes a serf for he is unable to return to his tribe, which has no land available. I do not say that these conceptions are universal, but they are held by many millions in Africa. How for they persist in communities which have nominally accepted the creed of Islam or Christianity, and what are the conceptions of the pastoral Hamitic tribes are still little known.
I am sorry to have taken up so much of your Lordships' time, but I can assure you that this is no trivial matter. For the reasons I have given, the land question is one of transcendant importance to the African, bound up with his religious conceptions and his social life. If this question is neglected or ignored now, you will have occasion—as South Africa has—to regret it in the future. I do not expect, or indeed desire, that the noble Earl who will speak on behalf of Government should attempt to give a reply here and now to the questions I have raised, but among all the preoccupations of our National Government I hope that this question may receive the consideration of the Secretary of State, not as regards Kenya alone, but in the larger aspect which I have endeavoured so inadequately to present to your Lordships.
§ LORD PASSFIELD
My Lords, there is: little that I can add in support of the statements put to your Lordships by the noble Lords, Lord Olivier and Lord Lugard, but I would like to add my testimony and my support to what they have brought before your Lordships. I was convinced during the inquiries which I necessarily had to make for two years or more that the present uncertainty with regard to the legal position of the Africans who thought they were owners of land was a very serious danger already, and one that was likely to become much greater as time went on. This applies in particular to the position in, Tanganyika, although there the Governor, by suitable declarations and assurances, had quieted the indigenous population on the point, but quieted them, I am afraid, only for a time. As the noble Lord, Lord Lugard, said, that mere promise of the then Governor is a very feeble support to rely upon when that, Governor has passed away and circumstances have 1026 changed, and I have been convinced that it would be very desirable if, in some way or other, quite definite titles could be given in proper cases to the African peoples, not only in Tanganyika, but in Kenya and Uganda so far as it is applicable there, and Nyasaland and elsewhere.
That is altogether different from the question of the protection of the reserves in Kenya and Northern Rhodesia. I have noticed sometimes an assumption growing up among those who are not Africans in Kenya—among the non-natives in Kenya—that the settlement of the reserves amounted to a division of the Colony between the Africans and those who have been called, not disrespectfully, the immigrant races. That is entirely wrong. The assignment and definition of certain areas as native reserves had no relation whatever to the question of dividing up the Colony between white and black. It did not at all imply that all that was outside the reserves was to be alienated in due time to the white population. There was no such assumption whatever in agreeing to the definition of the reserves. The reserves were for a very definite purpose. They were to be under special protection—which I hope is rather more effective protection than my noble friend Lord Olivier thought—but that must not be taken in the very least to imply that all the rest of the land which was outside the reserves was to be alienated in due time to the white settlers.
No such assumption lay in that action at all. And, as a matter of fact, the Governor was told at the time, and has been repeatedly told, that the British Government expected to have an inquiry into the sufficiency for the needs of the present and prospective population of the land which is in native occupation, with respect to land within or without the reservations, held either on a tribal or an individual tenure, and that declaration was repeated as a strong recommendation by the Joint Committee on page 44. You will notice it is not an inquiry whether the reserves are sufficient for the prospective needs. It was never intended that they should be necessarily. The whole of the land of Kenya in so far as it is not alienated is available for the prospective needs; of the native populations if those needs are made out. The 1027 Joint Committee very definitely said unanimously, and without any sort of criticism, that pending the conclusion of this inquiry no further alienation of Crown land from the native should take place except in exceptional cases with the sanction of the Secretary of State.
I do not want to suggest for a moment that it will be found that the prospective needs of the native population, even on the largest assumption, are such as to compel a permanent reservation of the rest of the land which is not yet alienated for them, and for them alone. I do not pretend that at all. But it is quite clear that there ought to be an inquiry at the earliest possible date into what are likely, so far as can now be seen, to be the prospective needs of the future native population, and that no alienation should take place which would prevent those needs being met. The importance of that has been recognised in Southern Rhodesia, where a division of the land has taken place but where a very large area has been reserved for future disposition in case the prospective needs of the native population should turn out to require it. The terrible consequences of not making provision for the prospective needs of the native population are now to be seen in the Union of South Africa. The Union of South Africa will have very serious trouble to undergo in the near future because of this neglect in the past to make provision for the prospective needs of that native population.
I am not competent, and of course I have had no opportunity of preparing myself even if I were competent, to discuss the more serious and ultimate question that the noble Lord, Lord Lugard, has raised with regard to the possible legal title of natives to land which has been for long past in their occupation. As a layman, I do not feel so perfectly sure that the legal decisions that the natives were nothing but tenants at will of the Crown amount to a denial that they have any rights which the Courts can enforce. Even tenants at will may be subject to easements and obligations of one sort and another. I do not think that the decision of the Courts, that the natives in those circumstances were nothing but tenants at will of the Crown, necessarily negatived for all time an inquiry into what customary 1028 obligations there were on the owner which the Crown in its equity would desire to respect. I fancy it would be possible after such an inquiry to establish some machinery for the recognition and maintenance of such customary rights as could then be put on record and recognised. However, whether that can be done or not, I would urge your Lordships to believe that it is very necessary that the question should be cleared up, because of this uncertainty which has been inspired in the native population in a large part of East Africa as to whether they have any legal rights and whether they have any title, which they can protect, to the land of which they are now admittedly in occupation. That ought to be enquired into.
To go back to the remarks of the noble Lord, Lord Olivier, about forced labour, I think, if I may say so, he was rather scoring a logical victory in a matter as to which I fancy there is no dispute about the facts. When the term "forced labour" is used, it is surely meant that the person who is subject to forced labour can be punished for not doing the forced labour which he is called upon to do by the competent authority. In that sense—and that is the sense in which "forced labour" is used in the International Convention to which His Majesty's Government has given its unreserved assent—I do not think there is any forced labour in Kenya at this moment at the hands of white settlers, or indeed in any private enterprise whatsoever. That, at any rate, is what the Government have been assured over and over again. Whatever forced labour exists in the strict sense of the term is, first of all, a certain amount of forced labour for the Government for public purposes, called out by the Local Government, and, secondly, certain forced labour by native custom, which the chiefs are entitled to exact of the people of their several tribes. It is not quite easy to put that down immediately by any legislative act.
His Majesty's Government have come under obligations by this International Convention to take steps to put it down at no distant date—I have forgotten what the term is. So far as I know there is no question between the parties, and there is no difficulty in the Colonial Office as to what is the intention of the Government on this question. I shall be glad if 1029 we can be told whether any steps are being taken, and what has been done. But the noble Lord, Lord Olivier, asserted that because a man has had his land taken away from him and has practically no means of livelihood except by accepting service on onerous terms from a certain employer, it may be the owner of the land on which he was squatting, that is forced labour. Although I entirely agree with the noble Lord that there is an element of force about it, I would remind him that a great many inhabitants, shall we say, of Western Europe have found themselves in the position of having been driven off land and, not having any land, finding themselves under the obligation, in order to live, of accepting employment even from some of those who have taken their land away from them, under conditions which were not always what they liked, though they were compelled to accept those conditions or starve. In Socialist speeches we do not generally refer to that as forced labour. It is certainly not forced labour in the sense in which that term is used in the International Convention to which the Government have acceded.
I should like to emphasise what the noble Lord, Lord Olivier, said about the difficulty in Kenya regarding the schools. It is a misfortune that some of the missionaries have given up carrying on some of their schools. I do not know, and I cannot enquire why, they should have taken that step, but it seems to me to be clear that if they have ceased to keep schools on those particular plots which were undoubtedly ceded to them, in so far as they were really ceded, or which they were given permission to occupy in order that a school should be kept there—if they give up keeping schools, either those plota must revert to the tribe which parted with them or they must not be allowed to be alienated in any way. They must be kept available for reinstating the schools as soon as it is possible to reinstate them. That is one of the things which I think the Governor ought to look after. I have a great admiration for the missionary bodies, but, I do not trust even a missionary body not to turn a disused school into cash, in order to carry on its mission if it has an opportunity of doing so. It is quite clear that in equity it ought not to be allowed to turn those school buildings into cash or exchange them for land. They will be 1030 wanted as schools whether they are carried on by the missionaries or not.
I will not take up any more time except to say again that I generally support the plea of Lord Lugard for a definite assertion of settlement, or a statement of what is the position with regard to natives in occupation of lands from which, they have not yet been extruded: and, consequently, I would ask whether something cannot be done to expedite the inquiry, which I hope has already been started, into the needs, present and prospective, of the natives in Kenya, within the reserves as well as outside the reserves, for more land, or whether the land is already sufficient. In that must be included the needs of those 150,000 or 250,000 so-called squatters on the alienated white lands, because they, too, are increasing in population. They, too, cannot be compelled to remain there for ever at wages; they, too, will want to swarm off, and they, too, will be a serious difficulty in the future if there is not land available for them to go to.
§ LORD CRANWORTH
My Lords, like the two noble Lords who have just sat down, I had the privilege of serving on this Select Committee, and I would say that it was a very happy, if lengthy, experience. We approached the subject from many different angles with many different and antagonistic views, and yet we were able to find a very considerable measure of agreement. It is in fact the case that we did only actually divide on two points. I cannot but wish that the noble Lord, Lord Olivier, had seen his way to form one of that body. I think that he would perhaps, as many of us did, have found reason to modify some of the views he held and still holds. I do not think, for instance, he would have come to your Lordships and told you about these dreadful cases of dispossession of land from natives. The Committee were very anxious to thrash that matter out, and they had very much evidence on that point. Naturally the witnesses brought forward what they presumed were the best cases to prove their point. Now this was one case. Application was made by a public utility company—an electricity company—for 20 acres of land which ten years previously, to my certain knowledge, had never been occupied by natives. They wanted the land for the purposes of an electricity supply for Nairobi, and—this is 1031 the point—the application had been refused. If that is a case that it is thought worth while to bring forward, surely it is not a very strong case.
I do not think also that the noble Lord would have told your Lordships that harrowing tale about the slavery of natives, with regard to which he asked me a pointed question. The answer to his question is, I think, a simple one. If the facts had been as he stated them, the answer would have been the one he wished to have, but they were not. With regard to these squatters, as I well know, in the vast majority of cases this is what happened. These natives came out of the reserves, from their own lands, and settled on private lands, where they live in a more spacious fashion, without paying rent, the only obligation upon them being to work a certain amount of time at the current rate of wage, whatever it might be, and, if they did not like it, they could at any moment leave and go back again, or go anywhere else. Now, if I am asked whether that is slavery, I must most emphatically say it is not. That is my answer to the noble Lord. I sometimes have a wish that the noble Lord had, during his career, been at one time or another a Governor of Kenya Colony, because I have noted, not without admiration, how, when the territory which he administered with such conspicuous success had fallen on evil days, he whole-heartedly championed its cause even against his old political companions, and I think, perhaps, even against his own old political convictions; and I believe that if he had been Governor of, shall we say, Kenya, we should find him just as eager a champion of that place as he is now an eager and ever-ready critic of it.
On that Committee we came to several conclusions and recommendations—I think some nine or ten. None of them are of a very striking nature, but we felt that as a whole they were designed to do good to the countries involved and all their inhabitants and not to any particular section of the population. I do not know as yet what the Government are doing in regard to those recommendations. They have not had very much time. One of the things which they have definitely done is to send out the noble Lord, Lord Moyne, to investigate a matter upon which we had very much evidence—that is the incidence of taxation, 1032 and whether it bears hardly on any particular section of the population. I rather regret that the noble Lord was not given somewhat wider terms of reference because it seems to me, when you send out a, man of his great qualifications, he should have had something rather more important to do than those particular terms of reference enable him to do. I myself think from the evidence that we had, and from other evidence I have heard, that he will come to the conclusion that there is little, if any, unfairness in the incidence of the taxation, and his time will, I am afraid, be to a certain extent wasted.
If the Government, have not done very much as yet—and as to that I do not know; we shall hear about it presently—are there not some new factors that have occurred since the Committee sat which have altered the situation? I venture to think that the problem now is rather of a different nature from what it was when our Committee sat. The whole of East Africa has fallen on evil days. If we take Kenya—and after all Kenya was the raison d'être of this Committee—I would ask you to think of three factors. First of all, there is the personal loss Kenya has suffered in the death of that great leader. Lord Delamere. There are many people who may not agree with his policy, there are many people who may not agree with the ideas he has expressed, but I do not think that anyone who knew Lord Delamere can have any doubt that he was a high-souled and absolutely unselfish patriot, and there is no doubt whatever that he was a great leader of men. Successive Governors have not found the white population, or even other sections of the population, entirely easy to handle. They are not easily led, yet Lord Delamere for 25 years had their undivided adherence to his policy. In this country his death would be no doubt a loss, but in a small country like that I think his loss is irreparable, at all events for the moment.
Secondly, East Africa and Kenya have suffered from the economic blizzard, like the rest of the world, and, possibly, they have suffered more for this reason. That country is largely built up, as I think are most young Colonies, on credit, and I would remind your Lordships that by the disastrous decision of, I presume, the banking community, the almost universal 1033 overdrafts in that country were increased some few years ago by 50 per cent. when the rupee was stabilised at 2s. There is one other cause which I think is even graver than those two, and that is the invasion of East Africa, and especially of Kenya, by vast swarms of locusts which have entered that country in great clouds, ten or fifteen or twenty miles long, so thick that they have obscured the sun. They have come down and they have destroyed the grass so that there is no grazing. They have destroyed the wheat, they have destroyed the maize, they have destroyed the native's food. I will here point out to your Lordships that had it not been for the much-criticised British Government and for the sometimes maligned British settlers, there would have been a famine in that land followed by a death-rate unparalleled—I say this advisedly—in African history. As it is I believe there have been no deaths from famine and I think that is something of which we may be legitimately proud.
Those three causes have put a very different complexion on the problems of Kenya and the problems of East Africa as a whole. The state of that country is at the moment very bad and the whole future of colonisation is at stake. It may be that from those factors colonisation will fail, and if it does I suppose the noble Lord will not be displeased, but I am sure that he will feel regret for those who have given up their lives and fortunes in work which at all events is legitimate. Personally I think that these men will succeed and will come again, because they are men of the sort who, having once put their hands to the plough, will not be easily deterred from achieving their end, but it must be years, at all events, before they get back to even a moderate state of prosperity. I venture to think that that is the problem, the problem of East Africa as a whole, which at the present moment overrides the lesser issues which we dealt with in this Report. I think the whole ship is in danger now and that the problem is to save it. When it is saved we can then consider which of the passengers shall have the better cabins.
§ THE UNDER-SECRETARY OF STATE FOR WAR (EARL STANHOPE)
My Lords, the four noble Lords who have taken part in this debate have all spoken 1034 bviously with great knowledge. I am afraid that I cannot claim that advantage, and indeed I should have been very hard put to it to reply to those noble Lords at all had not the noble Lords, Lord Olivier and Lord Lugard, both been good enough to send to the Colonial Office a précis of what they proposed to say. Therefore I have been able to some extent to prepare a reply. The Report of the Joint Select Committee, as I told your Lordships on the last occasion, has been referred to the three Governors in East Africa for their Report, and they have been asked to send Despatches to the Secretary of State for the Colonies stating how far they feel the recommendations of the. Committee can be carried into effect. Some answers have been received, but my right hon. friend the Secretary of State is not yet in a position to make a full announcement of the policy of His Majesty's Government. I hope that he will be able to make it at an early date, but meanwhile I can, at any rate, give your Lordships information on some points on which he has already made up his mind and tell you what action he has taken. As your Lordships are aware, the Governors meet early next month—I believe the date is April 11—at Dar-es-Salem, and a large number of points which the Joint Select Committee referred to, and which have been referred to again this afternoon, will come before the Governors for consideration and for report to the Secretary of State as to the conclusions at which they arrive.
I think no noble Lord dealt with the question of taxation to-day. That was referred to on the last occasion, and, as your Lordships know, my noble friend Lord Moyne left this country on February 24. I suppose by now he has arrived in Kenya. As regards railway rates, the Secretary of State is considering whether he will employ a railway expert specifically to go into the question of railway rates and to explore it forthwith, pending the appointment of an adviser on transport as recommended by the Joint Select Committee.
As regards the land question, which has been principally dealt with to-day, I can give your Lordships some information. I will not attempt to deal with the question of the legal position which was raised by my noble friend Lord Lugard. I am not qualified to do so and 1035 certainly your Lordships would not expect one either to criticise or discuss the judgments which have been given from time to time in our Courts of Law. Of course, as your Lordships know the Government—it does not matter which Government it is—has to follow the decisions given in the Courts until legislation brings about a different situation. Some steps have been taken already to deal with the question of native rights in land. The noble Lord opposite, Lord Passfield, himself produced an Ordinance in 1930 to provide for the reservation of land for the use and benefit of native tribes in the Colony of Kenya, and, as he stated, that made a reservation of land to the natives in perpetuity. The Secretary of State has gone a good deal further than that. He is about to appoint a Commission to go into the various questions connected with land in Kenya, and although I am not at present able to give your Lordships the personnel of that Commission, I can give you the terms of reference.
They are rather long, but I hope your Lordships will forgive me if I read them in full, because they very largely answer the questions which have been asked by the noble Lord, Lord Olivier. These are the terms of reference:1. To consider the needs of the native population, present and prospective, with respect to land whether to be held on tribal or on individual tenure.2. To consider the desirability and practicability of setting aside further areas of land for the present or future occupancy of (a) communities, bodies, or individual natives of recognised tribes, and (b) detribalised natives, that is, natives who belong to no tribe or who have severed connection with tribes to which they once belonged.Your Lordships will see that that deals straight away with the question of the adequacy of native reserves, both for the present moment and for the future, and that it also deals with the position of the detribalised natives which was particularly referred to by the noble Lord, Lord Olivier. The remaining terms of reference are:3. To determine the nature and extent of claims asserted by natives over land alienated to non-natives and to make recommendations for the adequate settlement of such claims whether by legislation or otherwise.4. To examine claims asserted by natives over land not yet alienated and to make recommendations for the adequate settlement of such claims.10365. To consider the nature and extent of the rights held by natives under Section 86 of the Crown Lands Ordinance, 1915 (Chapter 140 Revised Laws) and whether better means could be adopted for dealing with such rights in respect of (a) land already alienated, and (b) land alienated in the future.6. To define the area generally known as the Highlands, within which persons of European descent are to have a privileged position in accordance with the White Paper of 1923.7. To review the working of the Native Lands Trust Ordinance and to consider how any administrative difficulties that may already have arisen can best be met whether by supplemental legislation or otherwise without involving any departure from the principles of the Ordinance.
§ Your Lordships will agree that those terms of reference cover largely the questions which have been raised to-day and your Lordships will not, I am sure, expect me to give any information on these matters, which really now become sub judice, because obviously we must await the Report of the Commission which I hope will be set up in the course of a very few days.
§ The noble Lord, Lord Olivier, raised the question of the constitution of the Central Board. He quoted from the paragraph in the Ordinance which I think showed quite clearly that in the course of time an African or Africans will be appointed to the Central Native Lands Trust Board. At the present moment. although there are no doubt one or more natives who are qualified in many ways to sit on that Board, it is not, after all. the only qualification that they should have sufficient education and intelligence; they should also be considered representative by the natives. At present I understand the Governor does not feel that those conditions are fulfilled.
§ EARL STANHOPE
I understand not, and that therefore he does not feel that the time has arrived to appoint a delegate to that Central Board. Then the noble Lord asked me whether the Secretary of State would be prepared to publish the communications he had received from the Kikuyu Central Association and the replies to those representations. I am afraid the answer is in the negative and for the same reasons as were formerly 1037 given by Lord Passfield, who refused to recognise the Kikuyu Central Association as representative of the natives and also said, as I am sure Lord Olivier would agree, that any representation that comes from a Colony must be forwarded through the Governor. That is a view I am sure the noble Lord would have taken when he held that honourable and distinguished position. The representations made by the Central Association have therefore been sent back to the Governor, who will, no doubt, if he thinks fit, forward them on. Obviously that correspondence could not be published because in so doing the Central Association would be recognised as representing the natives, whereas the previous and the present Secretary of State do not think that body adequately does so.
The noble Lord referred to Reports regarding land tenure in the Kikuyu Province and the North Kavirondo Reserve, both extraordinarily interesting documents. Those of your Lordships who have read those Reports will recognise something of the difficulty of giving title in land. If I remember correctly, it was pointed out that often the boundaries between the land held by one clan and that held by another, or that held by one tribe and that of another, had better be marked out by the growing of trees—in one case fig trees—and that these trees should not be grown elsewhere. Picture the position when you have to put that on a map and definitely to say in a legal document—here is a title to land, this belongs to this individual and that to that! Obviously it means a very full survey and going into the question of not only who the owners are now, but who they were in the past. I think it has been shown quite clearly by my noble friend Lord Cranworth that East Africa is not in a financial position at this moment to engage the large. number of highly-skilled officials that would be necessary for that survey and land register, and although obviously it is a thing that any Government would like to do, I am afraid that at the present moment it does not look very hopeful having regard to the financial position of those parts of His Majesty's Dominions.
I think the noble Lord, Lord Cranworth, dealt very fully with the question 1038 of forced labour. I understand that the Governor has himself stated that he wishes to reduce the amount of forced labour, but that if it was cancelled at present it would lead to a good deal of misunderstanding, and that the Chiefs and tribes themselves would very much object to it. There is of course no forced labour on behalf of private individuals. It is either labour on behalf of the Government or on behalf of a tribe in such things as the making of a road or possibly irrigation or drainage. Those are obviously matters to the advantage of the inhabitants themselves and in the present state of large parts of the country it would be obviously advantageous that headmen and possibly Government officials should be given some power to have such work undertaken by natives. It is, I think, generally agreed that this must come to an end, but it is not a matter which, having gone on for very many generations in that part of the world, can be suddenly stopped by a decree.
The noble Lord, Lord Olivier, raised a question regarding missionary schools. I am afraid I am not at present in a position to answer that question. I was not aware that any missionary schools have been closed recently. The question of the land they were granted in respect of their schools is one I will ask the Secretary of State to consider, and I am sure he will take such action as may be found necessary. In regard to grant, I think the noble Lord would agree that where a missionary school does not come up to an adequate standard it should not receive a grant of public money. That would be detrimental to education and to the Colony as a whole. The progress in regard to education in these three Protectorates seems to me, from what I have read, to have been very notable and the schools for the training of teachers are one of its remarkable features. Natives are being trained to be able to go out and themselves become teachers in schools. I understand that the need for these schools is clearly proved, that natives are attending in very fair numbers, and then becoming really valuable in other parts of their areas.
I must agree with the noble Lord, Lord Lugard, in what he said as to the transcendant importance of land in these Colonies and I will certainly ask the Secretary of State to consider the matter 1039 I am sure that after the very valuable speech of the noble Lord he will be in a better position to consider the very difficult points which have been raised in relation to the legal status of natives. I hope I have answered most of the questions asked me. I must apologise to your Lordships for not being fully acquainted with all of them, but if your Lordships saw the mass of correspondence and the number of Commissions' Reports and Blue-books on the subject, I feel sure you would have some pity on me.
§ LORD OLIVIER
My Lords, I am sure we are all deeply grateful to the noble Earl for what we recognise must have been a heavy task, in getting up this subject adequately to give us the comprehensive reply which he has given. At the same time the noble Earl will not think it is any reflection on himself if I express regret that we have not in this House a direct representative of the Colonial Office, because if we had, although he could not have given a better reply, yet we feel it is nice to have somebody whom we can hit back if we do not get a satisfactory reply. I want to thank him very much for the statement he has made, which I am sure noble Lords will join me in doing. With regard to the instructions which have been drawn up for the Commission which is to be sent out to enquire into the land question, they seem to me really to cover the whole ground which it is necessary to cover, and they do cover those special points as to what is to be done for people who have been expropriated. The instructions seem to be thoroughly satisfactory and to give scope for clearing up the difficulty.
With regard to one point, the noble Earl said he could not promise to lay Papers, as I suggested, on the ground that the Kikuyu Central Council had not sent them in through the Governor, and the Council was not recognised by the Governor as representative of the natives. That is a minor point, and if those representations are made to the Commission they will be dealt with. I may say that in that letter no point is really raised which is not raised in the Report of the Select Committee, or in the evidence before the Select Committee. So, if the new Commission go thoroughly into their work they will have to deal with all the points raised in the 1040 letter, and I shall get as much satisfaction as if the noble Earl promised to publish that letter and the reply to it. One point has been raised which is of considerable interest. Lord Passfield took the view, apparently, that there was no restriction in any part of the Colony upon the alienation of the land of the natives. It was a point raised before the Select Committee, to which Lord Stanhope has referred in speaking of certain privileges given to Europeans in the highlands. It is a point which seems to be very vague, having regard to a question put by Lord Passfield to Sir Edward Grigg's and Sir Edward Grigg's reply, and I hope it will be cleared up by the proposed Commission. It is a perfectly clear point and one which they will look into in seeing what land is necessary for further extension.
There was, further, the point about forced labour. Lord Cranworth has left the House, but I was going to express my thanks to him for his solicitation about my spiritual welfare. He referred to the question of forced labour, and with regard to that I am sorry to say that I cannot pay the same compliment to Lord Passfield as I would like to have paid, because I think he showed a considerable obscurity in his treatment of the subject. I should like to bring him before a Committee of Conscience of my Party, and to put him through a cross-examination as to what he said. I do not go into the question of forced labour for public works. I am quite satisfied with regard to the present position of forced labour for public works. That has been thoroughly settled; but I say that if you have a man owning property, and you take away his property and tell him that he may not live there unless he works for another man, under an Ordinance, that is forced labour.
§ LORD OLIVIER
Because a man is bankrupt he loses his property, but where a man says "This is my property," and the Government takes it away from him, and says he shall not live on it unless he works for another man, that is forced labour. I ask leave to withdraw my Motion, because sufficient satisfaction has been given to the House by what the noble Earl has said.
§ Motion, by leave, withdrawn.